Cornoyer v. Oppermann Drug Co.

• Decision Date: 07 February 1933
• Docket Number: 22025
• Citation: 56 S.W.2d 612
• Parties: ANNA CORNOYER and LOUISE ROEGER, Executrices of the Will of LOUISE HEMMEN, Deceased, Respondents, v. OPPERMANN DRUG COMPANY, a corporation, Appellant
• Court: Missouri Court of Appeals

56 S.W.2d 612

ANNA CORNOYER and LOUISE ROEGER, Executrices of the Will of LOUISE HEMMEN, Deceased, Respondents, v. OPPERMANN DRUG COMPANY, a corporation, Appellant

No. 22025

Court of Appeals of Missouri, St. Louis

February 7, 1933

Appeal from Circuit Court, City of St. Louis. Hon. H. A. Hamilton Judge.

AFFIRMED.

SUTTON COMMISSIONER. Becker, P. J., and Kane and McCullen, JJ concur.

OPINION

SUTTON, C.

This is an action for personal injuries resulting from the negligence of defendant, instituted in the Circuit Court of the City of St. Louis, by Louise Hemmen as plaintiff against the Oppermann Drug Company as defendant, on September 20, 1929. Summons returnable to the October term, 1929, was duly issued and served on the defendant with a copy of the petition. No question is made with respect to the sufficiency of the summons or the service thereof.

On March 5, at the February term, 1930, an interlocutory judgment by default was entered. On April 3, at the April term, 1930, the interlocutory judgment by default was set aside on motion of the plaintiff. On March 24, at the February term, 1931, final judgment was entered as follows:

"Now at this day this cause coming on for hearing, comes the plaintiff in person and by attorney, but the defendant, although duly summoned and called, and being in default for want of a pleading, comes not, but remains in default; thereupon plaintiff, waiving a jury, submits this cause to the Court upon the pleading and proof adduced, and the Court having heard and duly considered the same, and being sufficiently advised thereof, doth find in favor of plaintiff and against the defendant, and doth assess plaintiff's damages in the sum of $ 2,500.00. Wherefore, it is considered and adjudged by the Court that the plaintiff have and recover of the defendant the sum of $ 2,500.00, together with the costs of this suit, and have therefor execution."

On April 2nd, at the same term, defendant filed its motion to set aside said final judgment and reinstate the cause, to which motion plaintiff on the same day filed answer. On April 3rd, at the same term, defendant's motion to set aside the judgment was overruled. On April 4th, at the same term, the order of the court overruling defendant's motion to set aside the judgment was set aside on oral application of the defendant, and said motion was reinstated on the docket.

On June 29, at the June term, 1931, the defendant's motion to set aside the judgment was overruled.

On June 30th, at the same term, defendant filed a further motion to set aside the judgment for alleged irregularity patent on the face of the record. The irregularity alleged in the motion is that no interlocutory judgment by default was entered prior to the entry of the final, judgment. On July 15th, at the same term, said motion was overruled. From the order of the court overruling said motion, defendant has appealed to this court.

The original plaintiff, Louise Hemmen, having died since the appeal was taken, this cause has been duly revived here in the names of Anna Cornoyer and Louise Roeger as executrices of decedent's will.

The defendant justifies its attack on the judgment by motion filed subsequent to the judgment term, on the ground of irregularity patent on the face of the record. Defendant invokes the rule that a final judgment may be set aside, under the provisions of section 1101, R. S. 1929, for irregularity patent on the face of the record, by motion filed subsequent to the judgment term, and says that such an irregularity is patent on the face of the record here involved, and on that ground assigns error on the part of the trial court in overruling its motion to set the judgment aside. The irregularity insisted upon by the defendant is that the final judgment by default was rendered contrary to the statutory method of rendering a final judgment by default, in that no interlocutory judgment was entered prior to the rendition of the final judgment. Defendant insists that the statute requires a preliminary or interlocutory judgment by default to be entered before the court is authorized to enter a final judgment by default. Defendant relies on sections 1073, 1077, 1078, and 1079, R. S. 1929.

Section 1073 provides that if the defendant shall fail to file his answer or other pleading within the time prescribed by law or the rules of practice of the court, an interlocutory judgment shall be given against him by default.

Section 1077 provides that when there are several defendants and some of them appear and plead and others make default, an interlocutory judgment by default may be entered against such as make default, and the cause may proceed against the others.

Section 1078 provides that whenever an interlocutory judgment shall be rendered for the plaintiff by default nihil dicit, confession, or upon an issue of law, in any suit founded upon a written instrument, or upon a judgment of any court of record, and the demand is ascertained, by such instrument or the record of any such judgment, the court shall assess the damages, and final judgment shall be given thereon.

Section 1079 provides that in all cases of interlocutory judgments not provided for in the two preceding sections, the defendant may, if he demand it, have a jury to assess his damages, and if no jury be demanded, the court shall assess the damages, or give the other relief asked for in the petition,...