Diekmann v. Associates Discount Corp.

Decision Date20 December 1966
Docket Number32199,Nos. 32122,s. 32122
Citation410 S.W.2d 695
PartiesKurt J. DIEKMANN and Norma (Mrs. Kurt) Diekmann, Plaintiffs-Appellants, v. ASSOCIATES DISCOUNT CORPORATION, a Corporation, and Emmco Insurance Company, Defendants, Bernard H. Lindenbusch, d/b/a Ben Lindenbusch, Defendant-Respondent.
CourtMissouri Court of Appeals

W. W. Sleater, St. Louis, for appellants.

Mehan & Sanders, by Richard J. Mehan, St. Louis, for defendant-respondent.

CLEMENS, Commissioner.

The plaintiffs, Kurt J. Dickmann and his wife Norma Diekmann, appeal from an order vacating a default judgment they had gotten against defendant-respondent Bernard H. Lindenbusch, a car dealer. The parties brief two issues: Is the order appealable? If so, was it proper for the trial court, after the judgment had become final, to set it aside on the ground it had been rendered on an amended petition not served on defendant Lindenbusch?

The plaintiffs had sued three defendants for damages suffered from buying, financing and insuring an automobile. Each was served with summons. The financer and the insurer pleaded but defendant Lindenbusch defaulted. Later, plaintiffs filed an amended petition but did not have it served on defendant Lindenbusch. Still later, plaintiffs dismissed their amended petition against the defendant financer and insurer and proved up a $1,496 default judgment against Lindenbusch. After the judgment had become final, the plaintiffs got out an execution and garnishment against defendant Lindenbusch. He then moved the court to set aside the judgment on the ground of irregularities on the face of the record. The court granted the defendant's motion, quashed the garnishment, set aside the default judgment, and put the case back on the docket. Plaintiffs promptly appealed from that order. (Appeal No. 32,122.) With an abundance of caution, plaintiffs simultaneously filed a motion for new trial. When that was denied by the passage of ninety days without court action, plaintiffs again appealed. (Appeal No. 32,199.)

At the threshold we meet defendant's motion to dismiss plaintiffs' appeals. He contends the appeals are premature because the plaintiffs have not yet suffered an adverse judgment; that they must submit to a retrial and only then can appeal--if they lose. Lindenbusch points to a wide range of cases holding that a plaintiff cannot appeal from an order setting aside a default judgment.

Before discussing these cases we must separate them according to the time each default judgment was set aside. This, because there is a material difference between default judgments that are not final and those that have become final. Here, the Diekmanns' default judgment was rendered June 19, 1964; it had become a final judgment when the trial court set it aside November 2, 1964. So, this case differs from those where the trial court sets aside the default judgment within thirty days after the judgment (or in pre-code days did so during the term the default judgment was rendered). By common law (Wooten v. Friedberg, 355 Mo. 756, 198 S.W.2d 1(1)) and now by Civil Rule 75.01, V.A.M.R., trial courts then had and now have the power to vacate default judgments rendered within those times. During this incubation period a default judgments is 'within the breast of the court'; and because it has not become final, setting it aside is a discretionary act from which no appeal lies. McCormick v. St. John, 236 Mo.App. 72, 149 S.W.2d 894(1); Kallash v. Kuelker, Mo.App., 347 S.W.2d 467(4). Even though a plaintiff may have filed a motion to vacate, when the court sets aside the default judgment within thirty days the court is deemed to have acted on its own initiative; and the motion is considered as only a 'suggestion to the court.' Mid-States Equipment Corp. v. Hobart Welders Sales & Service, Mo.App., 233 S.W.2d 757(4); Owens v. Owens, Mo.App., 280 S.W.2d 867, l.c. 869. We point up this distinction because several cases cited by defendant, 1 and other cases, 2 holding that an appeal does not lie from an order setting aside a default judgment were cases where the order was made during the trial court's discretionary period, before the judgment became final. Those holdings of premature appeal were required for a different reason: because there never had been a final judgment. They are not in point here.

Defendant Lindenbusch spotlights the oft-cited case of Bussiere's Administrator v. Sayman, 257 Mo. 303, 165 S.W. 796. In that case, as here, the trial court set aside a final default judgment. The plaintiff-appellant contended that the trial court's order vacating his final default judgment was a 'special order after final judgment,' and therefore was appealable under the statute (now § 512.020, V.A.M.S.). The Supreme Court rejected this, saying: 'Is there here left any final judgment in the cause when the appeal is prayed? Clearly not, because the motion being acted on favorably by the court has utterly wiped the final judgment off the record and the earth. It is not and cannot be an appeal after final judgment, because to my mind such a term could be applied only where a final judgment still existed, not to a case where it had utterly ceased to exist.' 3 The reasoning in Bussiere was followed in Stanton v. Hanna, Mo., 199 S.W. 145. We find no other case where the Supreme Court has applied Bussiere to an order setting aside a final default judgment.

The defendant clings to this concept that there is no appeal from an order vacating a final default judgment, citing our two opinions in Farrell v. DeClue, Mo.App., 365 S.W.2d 68 and 382 S.W.2d 462, where we followed Bussiere. The results there demonstrated the futility of following Bussiere. In the first DeClue case plaintiff got a default judgment for $9,000; the trial court set it aside--erroneously. But when plaintiff appealed we followed the procedure prescribed by Bussiere, dismissed his appeal as premature, and remanded the case. Plaintiff then tried his case to a jury and got a $2,500 verdict. Again plaintiff appealed, and only then did we consider the merits of the original order vacating the default judgment--and we held it was erroneous. We again remanded, this time ordering the trial court to reinstate the original $9,000 default judgment. By thus adhering to Bussiere, we compelled the plaintiff--who had a valid default judgment all along--to undergo a jury trial and a second appeal before we would consider the prejudicial error that had been patent on the record all the time. If Bussiere had not been a part of our judicial wardrobe for so many years, we could well ask: Would you believe it?

But in Casper v. Lee, 362 Mo. 927 (banc), 245 S.W.2d 132, our precise issue--an appeal from an order vacating a final default judgment--was ruled to the contrary. There, the plaintiff got a default judgment on October 5, 1949, giving him title to real estate and damages. After the default judgment had become final, it was set aside on the defendant's motion; and, just as here, the plaintiff appealed. The court said:

'On December 7, 1949, more than thirty days after the entry thereof, respondent filed a motion to vacate and set aside the default judgment. After hearing, the motion was sustained; the judgment was set aside; and the case was ordered reinstated on the docket. After an unavailing motion for a new trial, appellant has taken this appeal from the order or judgment setting aside the judgment in favor of appellant. An appeal lies from such an order or judgment. * * *' (Our emphasis.)

The court then took up the merits of the motion to vacate. Judges Dalton and Hyde dissented, not on the issue of appealability but on the merits of the order.

In thus holding that an appeal does lie from an order setting aside a final default judgment, the Supreme Court turned away from its ruling in Bussiere. This case of Casper v. Lee is the last word of the Supreme Court on the point now before us. So, we must and do rule that the plaintiffs Diekmann may appeal from the trial court's order setting aside their final default judgment. The Kansas City Court of Appeals recently followed the Casper case, twice holding that if the trial court vacates the plaintiff's final default judgment, the plaintiff may appeal to challenge the propriety of the order that took away his judgment. Fisher v. Mahler, Mo.App., 407 S.W.2d 590, and Robinson v. Clements, Mo.App., 409 S.W.2d 215, decided October 3, 1966, held that Casper v. Lee controlled the issue of appealability.

Defendant-respondent Lindenbusch argues, logically, that we must have statutory authority to consider the appeal. Section 512.020, V.A.M.S., authorizes appeals: from any order granting a new trial, from certain designated orders and interlocutory judgments that determine the rights of the parties, from any final judgment, and from any special order after final judgment in the cause. In Bussiere the court pointed out that the order appealed from had wiped out the judgment and reasoned that the italicized clause authorized an appeal only when a final judgment still existed after the trial court's order. But te clause 'from any special order after final judgment' is open to another construction: an appeal lies from any order made after a judgment has become final. The law favors appeals, and statutes granting appeals should be liberally construed. (Fenton v. Thompson, 352 Mo. 199, 176 S.W.2d 456(5); 2 Mo.Digest, Appeal and Error, k2.) Viewed in that light, an order vacating a default judgment after it has become final is 'a special order after final judgment'; and an appeal should lie to test the power of the trial court to take away the plaintiff's final judgment. But our ruling need not rest on that construction of § 512.020, V.A.M.S. Enough that in Casper v. Lee the Supreme Court ruled that a case like ours is appealable. So, we deny respondent Lindenbusch's motion to dismiss the...

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