Commercial Credit Equipment Corp. v. Colley
| Decision Date | 02 October 1972 |
| Docket Number | No. 25640,25640 |
| Citation | 485 S.W.2d 625 |
| Parties | COMMERCIAL CREDIT EQUIPMENT CORPORATION, a corporation, Respondent, v. Virgil F. COLLEY and Imogene W. Colley, Appellants. |
| Court | Missouri Court of Appeals |
Howard D. Lay, Edward L. Simmons, Kansas City, for appellants.
Donald L. Mason, Kansas City, for respondent.
This case was resubmitted after respondent's motion for rehearing was sustained.
It is an appeal from the Circuit Court of Clinton County challenging the ruling of the trial court overruling a motion to quash or stay execution which raises but a single issue, the jurisdiction of the trial court to enter an order sustaining a motion for summary judgment after the filing of an application and affidavit for disqualification of trial judge.
The transcript demonstrates that on the 8th day of May, 1969, the parties appeared in the Circuit Court of Clinton County, Missouri, and an off-the-record conference was held in the Judge's chambers, the specific occurrences in that conference not being shown of record. When the Judge entered the courtroom and opened court, the defendants filed, through their then-attorney, Mr. Fred Freel, an application and affidavit for disqualification of the Judge. This recited that knowledge and information of prejudice was obtained by defendants on the 8th day of May, 1969, being the day of the filing. A considerable colloquy occurred between the counsel and the court at that point, from which it appears that the court had indicated he intended to sustain the plaintiff's motion for summary judgment upon the basis of his examination of the file the evening prior to the day of trial. It also appears from the colloquy that counsel for defendants felt that prejudice had been exhibited by the court because the court indicated that he would rule the motion for summary judgment adversely to the defendants before they had an opportunity to be heard on it. The court, confronted with this situation, denied the affidavit and petition for disqualification of judge and then sustained the motion for summary judgment filed by the plaintiff. Immediately upon that ruling, the court then disqualified himself.
This ruling of the court as shown by his minute book made no mention of the amount of the judgment nor of its constituent parts. Thereafter, the court requested counsel to present a judgment entry which counsel for the plaintiff apparently did. This judgment entry set forth the amounts to be recovered by the plaintiff under its petition, including attorney's fees, interest, and the amount due under the plaintiff's claim and included a further order making the judgment on plaintiff's petition a final order for the purposes of appeal. Defendants' then-counsel filed a notice of appeal to the Supreme Court of Missouri, but failed to take any steps to perfect that appeal, and it was, thereafter, dismissed by the Supreme Court of Missouri for failure to file a transcript.
After the dismissal of the appeal in the Supreme Court, the plaintiff-company caused an execution to be issued and the defendants filed a motion to quash that execution or to stay process thereon. That motion was overruled by the trial court on the 25th day of September, 1970. On October 5, 1970, defendants filed their notice of appeal to this court. Defendants' motion to quash or stay the execution specifically raised the question of the jurisdiction of the trial court to enter the order sustaining the motion for summary judgment after an affidavit and petition for his disqualification had been filed.
Before turning to the merits of the question, we note one other matter. Respondent suggests in its brief that there has been a satisfaction of the judgment, and an exhibit has been filed here purporting to show the satisfaction of the judgment. The transcript of the proceeding by which we are bound contains no such satisfaction nor any stipulation or other agreement by which we could consider any exhibits filed in this court for the first time. Cobb Builders, Inc. v. Naidorf, 472 S.W.2d 33 (Mo.App.1971), l.c. 35. Respondent does not contend that the issues in this cause are moot.
On the issue of the propriety of the action of the trial court in refusing to disqualify himself, we conclude that ...
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...statement in the brief that assignment has been effected, Slivka v. Hackley, 418 S.W.2d 89 (Mo.1967); Commercial Credit Equipment Corp. v. Colley, 485 S.W.2d 625 (Mo.App.1972), absent concession thereof by the opposing party. Natasio v. Cinnamon, 295 S.W.2d 117 (Mo.1956); Hammack v. White, ......
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...which would leave the court without jurisdiction to take any further action in the case. Rule 51.05(e); Commercial Credit Equipment Corp. v. Colley, 485 S.W.2d 625, 627-628 (Mo.App.1972). The portion of Rule 51.05(b) which is the subject of dispute in this case provides that an application ......
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State ex rel. Carver v. Whipple, 61810.
...of the Rule 27.26 motion, was without jurisdiction. Hontz v. State, 574 S.W.2d 522, 525 (Mo. App.1978); Commercial Credit Equipment Corp. v. Colley, 485 S.W.2d 625, 628 (Mo.App.1972). Hence, the order setting aside relator's plea was a nullity, and respondent is ordered to vacate the judgme......
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