Conant v. Conant

• Decision Date: 16 June 1924
• Parties: ROY W. CONANT, APPELLANT, v. EMMA DODD CONANT, RESPONDENT. [*]
• Court: Kansas Court of Appeals

278 S.W. 90

221 Mo.App. 300

ROY W. CONANT, APPELLANT, v. EMMA DODD CONANT, RESPONDENT. ^[*]

Court of Appeals of Missouri, Kansas City

June 16, 1924

Appeal from the Circuit Court of Jackson County.--Hon. Williard P Hall, Judge.

AFFIRMED.

Judgment affirmed.

E. C Hall for appellant.

Walter Calvin for respondent.

OPINION

TRIMBLE, P. J.

The plaintiff in a suit for divorce, judgment for which was rendered in his favor at the December term, December 20 1922, appeals from an order setting aside the judgment on defendant's motion filed at the same term, but forty-four days after, the divorce judgment was rendered.

Said motion to set aside was by the court continued to the March term and set for hearing on March 17, 1923, at which it was, by leave of court, amended by interlineation so as to insert therein the charge that plaintiff was not, either at the time of filing his petition or at the trial, a bona-fide resident of the State one whole year next prior thereto. The court, at said March term, heard defendant's evidence in support of her said motion, and continued said cause for further hearing to a later date in said March term. The abstract does not affirmatively so state, but it is conceded, that at this later date in the March term the court continued the cause for further hearing to the June term, June 16, 1923, on which date the court, after hearing further evidence, sustained said motion and set aside the decree rendered at the December term and re-instated the cause on the docket.

Plaintiff at all times duly objected to any hearing of the motion upon the ground that the court had no jurisdiction, after the expiration of the December term, at which the judgment was rendered, to entertain said motion or to set aside the judgment, the said motion, although filed at the December term, not having been filed within four days after the rendition of the judgment. The plaintiff offered no evidence in opposition to said motion, and, when the same was sustained, promptly filed motion for new trial on said motion, and, when this was likewise overruled, took the usual steps to perfect his appeal, which the court allowed.

The petition for divorce was filed October 14, 1922, and alleged desertion occurring on October 5, 1921, as the ground thereof. Defendant was summoned by publication as a nonresident, but, not having any actual knowledge of the suit, did not appear, answer, or make any defense, but, so the judgment recites, made default.

Defendant raises no question as to plaintiff's right to appeal, but she has filed a motion to dismiss the appeal, based solely on the ground that appellant did not bring up the evidence introduced in support of the motion to set aside the judgment, but has merely contented himself with a recitation in the record that "the defendant (respondent herein) offered testimony and evidence tending to prove all the allegations of her motion."

So far as concerns plaintiff's attack upon the power of the court to entertain and act upon the motion at the subsequent term, it would not be necessary to bring up the evidence in support of said motion unless, perhaps, to show that the court sustained the motion on matters relating to errors committed in the course of the divorce hearing, which would require a motion for new trial, filed within four days, as will be more particularly hereinafter dealt with and set forth. But, as the motion to set aside is based on grounds other than those which can only be included in a motion for new trial, and as the action of the court is presumed to be right, we do not see wherein the respondent could be injured by a failure to bring up the evidence, or be entitled to have the appeal dismissed upon that ground. Respondent's motion to dismiss the appeal on the ground specified is, therefore, overruled.

In its nature, the divorce judgment, considered wholly by itself, and, in the absence of any voluntary action against it on the part of the court, or motion filed against it at the judgment term, was a final judgment--that is--to state it a little more accurately, it was a judgment that, upon the expiration of the term, would become final unless, during that term, the court itself acted upon it sua sponte or it was attacked by a motion to which the law gives the power to suspend its finality and carry the judgment over to another term and until the motion is disposed of. It is clear that, in the absence of anything of the kind or of anything done by the court on its own initiative during the term, the power of the court over the judgment, or to change it in any way by an order in that case, ceases with the expiration of the term. [Lovitt v. Russell, 138 Mo. 474, 483, 40 S.W. 123; Hall v. Lane, 123 Mo. 633, 636, 27 S.W. 546.] But by virtue of section 1456, Revised Statutes 1919, motions for new trial and in arrest, if filed within four days after judgment and at the same term the judgment was rendered, may attack it and suspend the finality of the judgment, carrying it over to a subsequent term and until they are disposed of. The question presented then is, inasmuch as the statute gives this power to motions filed within four days during the term, can such effect be accorded to other motions filed at the same term, but not within the statutory four days?

In the case of Childs v. Kansas City, etc., R. Co., 117 Mo. 414, 23 S.W. 373, judgment was rendered at the January term, February 24, 1888. At the same term, but not within four days, a motion to set aside was filed and heard and then continued over to the next term at which it was overruled, and defendant appealed. Judge BARCLAY, in his minority opinion affirming the judgment, said (p. 423), the motion to set aside was not "based on any irregularity of procedure" but on "judicial errors in the proceedings" and that as to a review of such errors the statute (now sec. 1471, R. S. 1919) requires the appeal to be taken at the term at which the final judgment occurs. And, on this, he says--"An undisposed of motion for new trial or in arrest, seasonably filed, will suspend the finality of a judgment (for the purpose of appealing) until such motion be determined. But where no motion of that kind is interposed, and the term of court ends, the pendency of such a late motion as that in question now, to set aside the judgment, will not have the effect to keep the antecedent record open until the next term for a general review as a matter of right. The trial court, in its discretion, after expiration of term to move for a new trial or in arrest, may set aside a judgment during the term at which it was rendered upon any ground that may satisfy the conscience of the court. Whether it may exercise that discretionary power afterwards, by carrying over a motion filed at the term of judgment we need not decide."

He then said that as the court had overruled the motion, the court's power to sustain it was not under review. Judge BARCLAY then goes on to again state (p. 424) that he is saying the judgment cannot be thus attacked for "errors that may have entered into the judgment" which can be reached only by a motion for new trial; and that the appeal from the motion to set aside being "groundless so far as any irregularity is concerned" and "having been taken too late to reach a review of any alleged errors with which the original judgment may be tainted" the only thing to be done was to affirm the judgment. (All italics ours.)

The majority opinion by Judge BLACK, agreed (p. 426) with Judge BARCLAY as to errors occurring in the course of the proceeding, namely, errors that require the saving of exceptions to preserve them for review. But as to the question whether the petition stated "any cause of action" it had long been held that such objection could be made at any stage, even in the appellate court for the first time; but it must be a "defect of a fatal character" (p. 427). Judge BLACK then says: "But it is said this appeal is of no avail to defendant because not allowed until the term after that at which the judgment was rendered." And in discussing this he says that a motion for new trial filed at the proper time and term and continued over to the next term, suspends the judgment so that a bill of exceptions may be filed and appeal taken at the term the motion is overruled, and that such a bill and appeal "will bring up for review all the exceptions taken during the progress of the trial" (italics ours). And then (p. 428), after citing the rule that in an appellate court a motion for rehearing, filed after adjournment of the term, under an order allowing the motion to be filed in vacation, continues the cause so that the opinion filed does not become the opinion of the court until the motion is disposed of, he says:

"As a general rule, a judgment cannot be set aside by the court rendering it after the term at which it was rendered; but during the term it may be set aside. And a motion filed at that term for that purpose and continued over to the next term suspends the judgment, so that the motion may be sustained at the succeeding term. Until the motion is disposed of, the judgment is not a finality. [Memphis v. Brown, 94 U.S. 715, 24 L.Ed. 244; Amy v. Watertown, 130 U.S. 301, 32 L.Ed. 946, 9 S.Ct. 530; Baker v. Baker, 51 Wis. 538, 8 N.W. 289; Windett v. Hamilton, 52 Ill. 180.] . . . A motion to set aside "judgment strikes at its validity and when filed at the term at which the judgment was rendered and continued to the next term has the effect to suspend the judgment so that the court can act upon the motion the same as at the prior term. The proceedings remain in the breast of the court until the motion is disposed of, and the appeal taken at the time when the motion is overruled brings up the same matters for...