Davis v. Lynn

• Decision Date: 08 April 1946
• Docket Number: 39652
• Citation: 193 S.W.2d 609,354 Mo. 1181
• Parties: Harlan B. Davis and Fannie M. Sheppard, Administratrix of the Estate of Jennie R. Powell, Deceased, v. Edna Lynn and Samuel P. Johnson, Defendants, Samuel P. Johnson, Appellant
• Court: Missouri Supreme Court

193 S.W.2d 609

354 Mo. 1181

Harlan B. Davis and Fannie M. Sheppard, Administratrix of the Estate of Jennie R. Powell, Deceased, v. Edna Lynn and Samuel P. Johnson, Defendants, Samuel P. Johnson, Appellant

No. 39652

Supreme Court of Missouri

April 8, 1946

Appeal from St. Clair Circuit Court; Hon. Dewey P. Thatch Judge.

Reversed and remanded (with directions).

Herman Pufahl, Ralph P. Johnson and John M. Belisle for appellant.

(1) Section 118 of New Civil Code: "If the motion for a new trial is not passed on within ninety days after the motion is filed, it is deemed denied for all purposes." (2) The court had no authority or jurisdiction to render a new judgment after it had sustained plaintiffs' motion for a new trial without hearing new evidence and after the term at which the former evidence was heard had expired.

Lee E. Crook and Edwin W. Mills for respondents.

(1) Section 3 of the New Civil Code, is as follows: "Section 3. Code shall take effect, when. This code will take effect on January 1, 1945. It governs all proceedings in actions brought after it takes effect and also further proceedings in all actions then pending, except to the extent that in the opinion of the court its application in a particular action pending when this code takes effect would not be feasible or would work injustice, in which event the former procedure applies." (2) Appellant contends that the trial court after sustaining plaintiff's motion for a new trial, had no further authority save to hear new evidence and re-try the case, and that the judgment which the court then proceeded to enter is void for want of jurisdiction. The former rule invoked by appellant, however, has been changed by the following provision in Section 115 of the New Civil Code which is as follows: "On a motion for a new trial in an action tried without a jury, the court may open the judgment if one has been entered, take additional testimony, amend findings of fact or make new findings, and direct the entry of a new judgment." (3) Nor is the lapse of the term any longer to be considered. Subdivision (c) of Section 6 of the New Civil Code, Laws 1943, page 358 reads: "(c) The period of time provided for the doing of any act or the taking of any proceeding is not affected or limited by the expiration of a term of court. The expiration of a term of court in no way affects the power of a court to do any act or take any proceeding in any civil action which it is otherwise by law authorized to take and which is pending before it.

OPINION

Gantt J.

Action to set aside a deed of the collector of St. Clair County conveying, under the Jones-Munger Law, to defendant Samuel P. Johnson, the northeast quarter of the southwest quarter and the northwest quarter of the southeast quarter, both in Sec. 11, Township 36, Range 27, St. Clair County, Mo.

The case was tried on April 15, 1944. On June 19, 1944, the court ruled in favor of the defendants and dismissed the petition. On that date plaintiffs filed a motion for a new trial. On April 20, 1945, the court sustained the motion and entered judgment for the plaintiffs.

Defendant Johnson contended that the court was without jurisdiction to rule on the motion for a new trial on the theory that, under Sec. 118 of the New Civil Code, said motion had been overruled by operation of law, which section follows:

"If the motion for a new trial is not passed on within 90 days after the motion is filed, it is deemed denied for all purposes."

The sections herein mentioned are sections of the new civil code, Laws of Mo. 1943, p. 353.

In the decree the court found that the land, at the time it was sold to defendant Johnson for taxes, was of the value of $ 1200, and for that reason ruled that the sum of $ 127.50 was and is grossly inadequate and a fraud upon the rights of plaintiffs in and to said land. In other words, the court ruled that said sum was so grossly inadequate as to be a fraud in law and for this reason granted plaintiffs a new trial.

In due time defendant Johnson filed a motion to set aside the order sustaining plaintiffs' motion for a new trial, to vacate and strike out the judgment rendered in favor of plaintiffs on April 20, 1945, and to enter an order overruling plaintiffs' motion for a new trial. The court overruled said motion and defendant Johnson appealed. He assigns error as follows:

"I. The Court erred in sustaining plaintiffs' motion for a new trial, for the reason that more than ninety days had elapsed after January 1, 1945, (when the new civil code went into effect) before it was passed on, and therefore, it was by law overruled, and the Court had no authority to sustain it.

"II. Because the Court had no right or authority to render a new judgment in favor of the plaintiff after sustaining the motion for a new trial without hearing additional and further evidence."

In lieu of a bill of exceptions, the parties stipulated that the above assignments of error are the only questions for consideration and decision on this review. We proceed with this understanding.

Defendant contends that the court should have ruled on the motion for a new trial within ninety days after January 1, 1945, the effective date of the new civil code. We find in said code no requirement limiting the submission of a motion...