Crispin v. St. Louis Public Service Co., 42035

• Court: Missouri Supreme Court
• Writing for the Court: HYDE
• Citation: Crispin v. St. Louis Public Service Co., 361 Mo. 866, 237 S.W.2d 153 (Mo. 1951)
• Decision Date: 12 February 1951
• Docket Number: No. 1,No. 42035,42035,1
• Parties: CRISPIN v. ST. LOUIS PUBLIC SERVICE CO

Page 153

237 S.W.2d 153

361 Mo. 866

CRISPIN v. ST. LOUIS PUBLIC SERVICE CO.

No. 42035.

Supreme Court of Missouri, Division No. 1.

Feb. 12, 1951.

Rehearing Denied March 12, 1951.

Fred J. L. Schuler, Leahy & Leahy, Shad R. Bennett, Joseph J. Simeone, Jr., St. Louis, for appellant.

Coburn, Storckman & Croft and Clem F. Storckman, all of St. Louis, for respondent.

HYDE, Judge.

Plaintiff commenced an action for $10,000 damages, for wrongful death of her husband, which was dismissed, September 24, 1948, for failure to give security for costs. Plaintiff commenced this present suit on the same cause of action on August 1, 1949, as authorized by Sec. 3656, R.S.1939, now 537.100, R.S.1949. Defendant's motion to dismiss (on the ground that the order did not recite the dismissal was without prejudice) was sustained and plaintiff has appealed from this judgment of dismissal.

Plaintiff's previous action was filed June 4, 1946. A motion for security for costs, filed by the Circuit Clerk and Sheriff, was sustained on June 18, 1946 and plaintiff given ten days to give bond or deposit $40. Plaintiff did not comply and the case was put on the dismissal docket. Nothing else was done until September 14, 1948 when on application of plaintiff's attorney the Court made the following order: 'It is ordered by the court upon oral motion of the plaintiff, by attorney, that this cause be removed from the dismissal docket of September 14th, 1948, and reinstated on the trial docket on application, and doth further order that the plaintiff be granted ten days from this date to secure the costs herein.'

Plaintiff did not comply with this order and on September 24, 1948 the Court made the following order of dismissal: 'It appearing to the satisfaction of the court that the plaintiff has failed to comply with the order heretofore entered herein on the 14th day of September, 1948, requiring plaintiff to give security for costs, it is ordered by the court that this cause be, and the same is, hereby dismissed, for such failure, at the cost of plaintiff, for which let execution issue.'

The decisive question herein is whether the dismissal of plaintiff's first action was a final adjudication upon the merits under Sec. 101 of the 1943 Code. Sec. 510.150, R.S.1949. Although the parties have briefed other matters, we think this should be decided upon the construction of the applicable provisions of the Code. Sec. 101 is as follows: 'A dismissal without prejudice permits the party to bring another action for the same cause, unless the action is otherwise barred. A dismissal with prejudice operates as an adjudication upon the merits. Any voluntary dismissal other than one which the party is entitled to take without prejudice, and any involuntary dismissal other than one for lack of jurisdiction or for improper venue shall be with prejudice unless the court in its order for dismissal shall otherwise specify.'

The part of Sec. 101, concerning involuntary dismissals must be read and construed with Sec. 100, Sec. 510.140, R.S.1949, the first sentence of which is: 'For failure of the plaintiff to prosecute or to comply with this code or any order of court, a defendant may move for dismissal of an action or of any claim against him.' This language comes from Fed.Rules Civ.Proc. rule 41, 28 U.S.C.A.; the first sentence of Sec. 100 and the substance of Sec. 101 is contained in subsection (b) thereof. However, our Sec. 99, Sec. 510.130, R.S.1949, permits one voluntary dismissal without prejudice as a matter of right, which is not true of the Federal Rule. Thus our practice is more lenient than the Federal Rule and this accounts for difference in the language used. Nevertheless, in the Federal Courts, 'local rules commonly provide for an entry of dismissal, without prejudice, by the clerk, after the lapse of a specified period of time without any affirmative action to keep the particular suit or claim in progress.' 7 Cyclopedia of Federal Procedure, 2d Ed. 392, Sec. 3248.

In Bindley v. Metropolitan Life Ins. Co., 358 Mo. 31, 213 S.W.2d 387, 390, we held that a dismissal on the Court's own motion, without motion of the other party and notice, did not operate as an adjudication of the merits of the cause, but that 'The 'involuntary dismissal' referred to in Section 101, supra, which shall be 'with prejudice unless the court in its order for dismissal shall otherwise specify' necessarily means an 'involuntary dismissal' with notice and an opportunity to be heard, and not a mere termination of the action by the court in the absence of the parties pursuant to some local court rule.' We pointed out that Sec. 100 'provides that a defendant may move to dismiss for failure of the plaintiff to...