Davis v. Moore

• Decision Date: 02 December 1980
• Docket Number: No. 40188,40188
• Citation: 610 S.W.2d 665
• Parties: Leroy DAVIS et al., Plaintiffs-Respondents, v. Samuel MOORE, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 665

610 S.W.2d 665

Leroy DAVIS et al., Plaintiffs-Respondents, v. Samuel MOORE, Defendant-Appellant.

No. 40188.

Missouri Court of Appeals, Eastern District, Division Two.

Dec. 2, 1980.

James P. Gamble, St. Louis, for defendant-appellant.

Eugene Buder, St. Louis, for plaintiffs-respondents.

KELLY, Chief Judge.

Samuel Moore, the appellant, brings this appeal from a denial of his post-trial motion to set aside a default judgment of the Circuit Court for the County of St. Louis setting aside a Collector's Deed to Lot 42 in Block 4 of Kentland Subdivision, the street address of which is 5507 Maguire Avenue, Kinloch, Missouri, and a judgment of the Circuit Court for St. Louis County entered June 26, 1972, quieting title in said property in Mr. Moore, and assessing actual damages in the amount of $2973.91 and punitive damages in the amount of $3000.00, together with costs against him, or, in the alternative, to grant him a new trial.

On appeal, Mr. Moore raises five points of alleged error which he claims entitle him to an order remanding the cause to the trial court with direction to enter judgment for him quieting title to the subject property in him, or, in the alternative, to a reversal of the trial court's judgment on the grounds that the trial court abused its discretion in denying his post-trial motions and that the cause be remanded to the trial court for a new trial.

Appellant's first point is that the trial court abused its discretion in overruling his alternative motions to set aside the default judgment or for a new trial because at the time the trial court entered its judgment, he was not in default.

In view of appellant's first point we deem it necessary to set forth a detailed statement of the facts relative to the issue therein raised.

On August 8, 1974, respondents instituted this action against the appellant and one Roger Larson, on the theory that the two conspired to defraud the respondents of the subject property by having Larson, in his official capacity as Deputy Tax Collector of the City of Kinloch, misrepresent to the respondents that no taxes were due on the property so as to enable the appellant to purchase said property at a tax sale. On September 13, 1974, the appellant filed a motion to dismiss said Petition claiming it failed to state a claim upon which relief could be granted. Thereafter on October 22, 1976, the respondents filed simultaneously a motion requesting leave to add parties, file an amended petition and transfer the cause to equity together with an amended petition. ¹ The transcript on appeal reflects that on that same date the appellant consented to the motion. However, appellant added the following comment to his consent: "but renews his (appellant's) objection to any further proceedings in this action."

The amended petition was in two counts; the first Count being in equity and claiming that the tax sale was held in violation of § 94.320 RSMo.1969 and ordinances of the City of Kinloch. This Count contained an offer by respondents to refund to appellant all taxes that he had already paid. Further, it alleged that the appellant obtained service by publication in the quiet-title suit by "falsely and fraudulently" swearing that the heirs of Charles and Clara Davis were unknown to him when in fact he knew respondent Leroy Davis for several years. The prayer in Count I requested a judgment and decree setting aside the tax sale and the judgment to quiet title as well as actual damages in the amount of $100.00 and punitive damages in the amount of $10,000.00. Count II of the Petition, in the alternative, re-alleged the facts in Count I but requested only actual damages consisting of the fair market value of the house ($10,000 which included $6,000 in labor and materials put therein by the plaintiff) and punitive damages in the amount of $10,000.00.

The transcript reflects a minute entry of January 18, 1977, whereby respondents dismissed their action against defendant Roger Larson. The transcript also contains a letter written to appellant by respondents' attorney dated March 8, 1977, sent by certified mail and a receipt bearing appellant's signature. In this letter, respondents' attorney acknowledged the withdrawal of appellant's lawyer from the case on October 25, 1976, and stated that he was enclosing a copy of the Amended Petition which appellant's attorney had received before he withdrew. Respondents' attorney also enclosed a copy of a Second Amended Petition which he stated he intended to file and notified the appellant that the case had been set on the Equity Docket of Division 10 of the St. Louis County Circuit Court for April 25, 1977.

On April 27, 1977, respondents filed their Second Amended Petition wherein the amounts of actual damages were increased in both Counts to reflect the amount of monthly rent appellant had collected after July of 1972, minus the taxes he had paid on the property. A certified letter in the transcript dated June 22, 1977, from respondents' attorney to the appellant reflects that appellant failed to appear on April 25, 1977, and as a consequence the case was reset on the Equity Docket of Division 10 of the St. Louis County Circuit Court for September 26, 1977. In this letter appellant was also advised that the Second Amended Petition "had been filed with the Court ..." On September 26, 1977, a hearing was held, but appellant again failed to appear, and at this hearing, only the respondents presented evidence.

On November 1, 1977, the trial court filed its Findings of Fact, Conclusions of Law, and Judgment and Decree, wherein it vested title to the property in question in the respondents; cancelled and set aside the August 25, 1969, tax sale of said property, the collector's deed to said property, and the February 8, 1972 ² judgment quieting title to said property in the name of appellant Samuel Moore; and awarded judgment for respondents and against appellant in the amount of $2,973.91 compensatory damages and $3,000.00 punitive damages.

On November 16, 1977, another attorney entered his appearance as counsel for appellant, and on that same date, filed alternative motions to set aside the default judgment or for the granting of a new trial on the grounds that fewer than fifteen days had pressed since entry of the default judgment; that he had filed his motion to dismiss within 30 days after service of summons and petition and that the motion had not been either granted or denied at the time of the court's rendering of a default judgment against him; that he believed in good faith that the trial court lacked the power to set aside the quiet-title judgment; that he had a meritorious defense; that the court failed to allow a set-off for the value of improvements which he had made; and that respondents failed to prove that he had acted maliciously toward them.

Where a motion to set aside is filed within the period provided for filing motions for new trial, the appellate courts of this state, usually without any discussion of this question, have uniformly considered such motions as being timely and as effective as though denominated a motion for new trial. Gorzel v. Orlamander, 352 S.W.2d 675, 677(1) (Mo.1961). Further, said motions have the effect of vesting the trial court with jurisdiction to rule the motion upon its merits within the period of 90 days after it was filed. Id. at 678. Here, the motions, set in the alternative, were timely overruled on the 90th day after filing.

The motions, although titled in the alternative, sought the remedy of a motion to set aside. Therefore, on appeal, we must be controlled by those principles applicable to an appeal from a motion to set aside a default judgment. We may not interfere with the ruling below unless the record reveals that the trial court abused its discretion and rendered a judgment which was clearly erroneous. Ward v. Cook United, Inc., 521 S.W.2d 461, 470(10) (Mo.App.1975). In order to reverse the trial court's refusal to set aside its judgment against the defaulting party, that party must show as basic prerequisites: 1) that he had a meritorious defense, and 2) that good reason or excuse existed which could explain away the default. In re Marriage of Millsap, 559 S.W.2d 69, 71(2) (Mo.App.1977).

Appellant initially contends that the trial court's judgment was erroneous because he was never in default because his motion to dismiss respondents' original petition had never been ruled on by the trial court and therefore no responsive pleading was yet due and therefore he could not be in default.

Respondents concede that appellant's motion to dismiss their original petition for failure to state a claim upon which relief could be granted was well taken because of their failure to allege therein an offer to refund to appellant all taxes he had paid together with interest thereon from the date of payment of such taxes to the date of judgment as mandated by § 140.600 V.A.M.S. They recognized this defect and, without calling the motion for argument, filed their amended petition with consent of appellant and his then counsel of record, curing this defect.

It is appellant's contention that it was not necessary for him to either refile the motion to dismiss which he had filed against the original petition, or file a new motion to the same effect because the minute entry of October 22, 1976, whereby he consented to respondents' filing their Amended Petition, did renew his previously filed motion to dismiss because it also contained the following: "but renews his objection to any further proceeding in this action," constituted a renewal of that motion against respondents' amended petition and extended to their Second Amended Petition also.

We agree with appellant that he was not in default prior to respondents filing their amended petition, since no responsive pleading was required because his motion to dismiss the original petition was still pending. Rule 55.25(c).

However,...