Clark v. Brown
| Decision Date | 16 July 1990 |
| Docket Number | No. 16445,16445 |
| Citation | 794 S.W.2d 254 |
| Parties | Travis CLARK and Peggy Clark, Plaintiffs-Respondents, v. James BROWN, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Virginia L. Fry, Todd M. Thornhill, Woolsey, Fisher, Whiteaker & McDonald, Springfield, for defendant-appellant.
Richard L. Anderson, Kimberling City, for plaintiffs-respondents.
Defendant appeals from a purported order overruling his motion to set aside a default judgment. We hold that there is no appealable final order because the purported order in question is void, and we therefore dismiss the appeal.
Plaintiffs filed suit in the Circuit Court of Stone County, Missouri on various grounds, including that of malicious prosecution. When defendant failed to appear, plaintiffs dismissed all counts of their petition except those pertaining to malicious prosecution, and on August 17, 1988, Judge McPherson entered default judgment for plaintiffs for $24,000 in actual damages and $100,000 in punitive damages.
On November 10, 1988, defendant filed a motion to amend proof of service of process or in the alternative to set aside the default judgment under Rule 74.05(c). A hearing was held on that motion on March 1, 1989.
On April 20, 1989, Judge McPherson wrote to the Commission on Retirement, Removal and Discipline requesting retirement for physical disability. After consideration of the request and supporting medical records, the Commission concluded that Judge McPherson was unable to discharge the duties of his office, and on June 13, 1989, it recommended to the Missouri Supreme Court that Judge McPherson be granted disability retirement.
Thereafter, on June 26, 1989, Judge McPherson entered an order overruling defendant's pending motion to amend proof of process or to set aside the default judgment. Defendant appealed to this Court from that order on July 6, 1989.
Defendant presents three points for consideration: (1) that there was no valid proof of service of process on defendant in the lawsuit for malicious prosecution by plaintiffs against defendant; (2) that the trial court abused its discretion in overruling the motion to set aside the default judgment; and (3) that Judge McPherson had no jurisdiction to act in the case after June 13, 1989. Because we sustain the point last mentioned, it becomes unnecessary (and indeed we have no jurisdiction) to rule the other two points.
Supreme Court Rule 12.06 provides:
"A judge is disqualified from acting as a judicial officer while there is pending * * * a recommendation to this Court by the Commission for his removal or retirement * * *."
The Commission did make a recommendation to the Supreme Court for Judge McPherson's retirement on June 13, 1989. By the express terms of Rule 12.06, Judge McPherson had no jurisdiction on June 26, 1989, to overrule defendant's motion as he purported to do.
Plaintiffs argue that Judge McPherson's inability to act on June 26, 1989, is immaterial, because the motion had already become overruled automatically on February 8, 1989. They reason that the motion to set aside the default was an after trial motion under Rule 81.05 and is subject to the same time limitations as a motion for new trial; and therefore the motion to set aside is subject to the provision of Rule 78.06 that if the trial court does not pass upon the motion within 90 days after it is filed, it is denied for all purposes. Plaintiffs further argue that this appeal came too late, because it was filed more than ten days after February 8, 1989.
Although not cited by plaintiffs, their argument is supported by some cases decided prior to the rules revision which became effective January 1, 1988. These cases say that a motion to set aside a default judgment can properly be considered as an after trial motion in the nature of a motion for new trial and is therefore subject to the time limitations of old Rules 75.01, 78.04 and 78.06. State ex rel. Stoffer v. Moore, 628 S.W.2d 637 (Mo. banc 1982); Gorzel v. Orlamander, 352 S.W.2d 675 (Mo.1961); J & J Window Sales, Inc. v. Mueller, 567 S.W.2d 153 (Mo.App.1978); Murray v. Sanders, 667 S.W.2d 426 (Mo.App.1984); State ex rel. Campbell v. Anderson, 536 S.W.2d 200 (Mo.App.1976). See, however, Head v. Ken Bender Buick Pontiac, Inc., 452 S.W.2d 596, 597 (Mo.App.1970), which holds that any of the six remedies afforded to set aside a...
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In re Marriage of Coonts, 27052.
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