Donnell v. Vigus Quarries, Inc.

• Decision Date: 28 July 1970
• Docket Number: No. 33684,33684
• Citation: 457 S.W.2d 249
• Parties: Hart B. DONNELL and Edna L. Donnell, Plaintiffs-Appellants, v. VIGUS QUARRIES, INC., a Corporation, and Fred Weber, Contractor, Inc., a Corporation, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 249

457 S.W.2d 249

Hart B. DONNELL and Edna L. Donnell, Plaintiffs-Appellants, v. VIGUS QUARRIES, INC., a Corporation, and Fred Weber, Contractor, Inc., a Corporation, Defendants-Respondents.

No. 33684.

St. Louis Court of Appeals, Missouri.

July 28, 1970.

Pannell, Dodson & Robinson, Festus, for plaintiffs-appellants.

Earl R. Blackwell, Hillsboro, for defendants-respondents.

DOERNER, Commissioner.

Plaintiffs, husband and wife, appeal from an order made by the court of its own initiative vacating a judgment and decree and granting defendants a new trial, which judgment and decree had been rendered in favor of plaintiffs when the defendants failed to appear on the day the cause was set for trial.

Prior to that date the case was at issue upon an amended petition filed by plaintiffs, an answer an counter-claim filed by defendants, and plaintiffs' answer thereto. The amended petition contained three counts. In Count I plaintiffs alleged that in June and July, 1966, the defendants had entered upon plaintiffs' land and with tractors, bulldozers and other earth-moving equipment had willfully, wantonly and maliciously '* * * destroyed all foliage covering one acre * * *' of plaintiffs' real estate and removed the topsoil therefrom, to plaintiffs' damage in the sum of $1,000. Their prayer was for judgment of treble damages of $3,000. In Count II plaintiffs averred that in June and July, 1966, on the property owned by defendant Vigus Quarries, which adjoined that of plaintiffs, defendants had so altered the channel of Plattin Creek as to erode plaintiffs' land and that the change in the channel would cause the erosion to continue; that defendants had also erected a bridge over said creek, on the land of defendant Vigus Quarries, which was inadequate in size to permit the flow of the creek during periods of high water, that the bridge had caused and would continue to cause additional erosion to the real estate owned by plaintiffs, and that defendants' actions had been committed willfully, wantonly, and maliciously. Plaintiffs' prayer was for actual damages of $2,000 and punitive damages of $10,000. Plaintiffs also prayed for an injunction enjoining defendants from maintaining the channel of Plattin Creek as relocated and the bridge crossing the Creek, and ordering the defendants to restore Plattin Creek to its normal channel. In Count III plaintiffs alleged that the defendants had willfully, maliciously and wantonly altered the course of a spring fed branch which flowed across the land of defendant Vigus Quarries so as to cause, and which would continue to cause, the erosion of plaintiffs' real estate. Their prayer was for actual damages of $2,000, punitive damages of $10,000, and for a permanent injunction enjoining the defendants from maintaining said branch in its relocated channel and ordering the defendants to restore said branch to its normal channel.

The joint answer of the defendants to plaintiffs' petition was in the nature of a general denial. In the counter-claim filed by defendant Vigus Quarries it was alleged that said defendant was legally entitled to the possession of certain described premises, and that plaintiffs had entered into such premises and had unlawfully withheld possession thereof from said defendant, to defendant's damage in the sum of $25,000. By an amended answer plaintiffs denied generally the allegations contained in the counter-claim, and pleaded that the land described therein had been in the possession of plaintiffs and of plaintiffs' predecessors in title, openly, notoriously, and continuously under a claim of right for a period in excess of ten years prior to the filing of said counter-claim, and that title to said property was in plaintiffs by virtue of adverse possession.

Plaintiffs' original petition was filed on February 24, 1967 and service was obtained on both defendants on March 2 of that year. The record shows that thereafter the case was continued from time to time, at the request of one side or the other, until August 18, 1969, when defendants requested a continuance, at which time the matter was set for trial on September 19, 1969. Defendants did not appear, either in person or by counsel, when the case was called on that day, and after a recess had been taken the plaintiffs waived a jury and the hearing began. After plaintiffs' counsel had had certain exhibits marked he requested and was granted leave to amend Count I of plaintiffs' amended petition by interlineation in two particulars. By the first the wors 'trees and timber' were added after the word 'foliage' in paragraph 5 of Count I so that as amended the allegation charged the defendants with having willfully, wantonly and maliciously destroyed 'all foliage, trees and timber covering one acre' of plaintiffs' real estate. By the second amendment, in the same paragraph, the words 'in all of which timber, trees, topsoil and foliage the defendants have no right or interest' were added, so that paragraph 5, which contained the allegation as to defendants' trespass and destruction, concluded with the phrase 'in all of which said timber, trees, topsoil and foliage the defendants have no right or interest, all to plaintiffs' damage in the sum of One Thousand Dollars ($1,000.00).'

The transcript contains all of the evidence presented on behalf of plaintiffs, but in view of the court's action we do not deem it necessary to review such evidence other than to observe that while a prima facie case may have been made as to defendant Vigus Quarries, Inc., it was totally devoid of any evidence connecting the defendant, Fred Weber, Contractor, Inc., with the matters about which plaintiffs complained. At the conclusion of the hearing the court dismissed the counter-claim of defendant Vigus Quarries for failure to prosecute and rendered judgment in favor of plaintiffs and against both defendants for treble damages of $3,000 on Count I; actual damages of $2,000 and punitive damages of $2,000 against both defendants on Count II; and actual and punitive damages in the same amounts against both defendants on Count III. At the same time the court took uner advisement the plaintiffs' prayer for the injunctive relief asked in Counts II and III, and five days later, on September 24, 1969, issued its decree. By that decree the defendant Vigus Quarries alone was enjoined and restrained from: (1) directing the flow of Plattin Creek in such a manner and direction as to continue to cause damage to plaintiffs' land; (2) from maintaining said bridge of such inadequate size across Plattin Creek on the land of said defendant; and (3) from directing the branch creek onto plaintiffs' land at a point other than at the channel of said creek as it existed immediately prior to the relocation of said branch creek by defendants in June, 1966. Service of such injunction on the defendant Vigus Quarries was made by the sheriff on September 26, 1969.

On October 8, 1969, defendants filed a joint motion, titled 'Motion to Set Aside Default Judgment,' in which, in brief, they alleged that on the date judgment had been rendered defendants' counsel was actually in attendance at a session of the Missouri General Assembly; that plaintiffs were permitted to amend their petition on the date judgment was rendered, and neither defendants nor defendants' counsel received any notice of said amendment; that the judgment rendered was unconscionable both in the amount of damages and injunctive relief; that defense counsel received no notice of the trial setting; and that the defendants had a good and meritorious defense to plaintiffs' action as well as a meritorious cause of action against plaintiffs on defendants' counter-claim. That motion was heard by the court on October 14, 1969, at which defendants' counsel was the only witness and the court's entire file was introduced by him as an exhibit. Counsel's testimony and the court's records showed, in substance, that on August 14, 1969, when the court set the cause for trial on September 19, 1969, defendants' counsel was not present in person but that notice thereof was sent by the clerk by regular mail, which defendant did not deny had been delivered to his law office. Defendants' counsel also recalled receiving a long distance telephone call on August 14, 1969 from plaintiffs' attorney in which he agreed to any trial setting after September 1, but had no recollection (but did not deny) that the date of September 19 was stated as the trial date during the telephone conversation. Defendants' counsel also testified that he was not advised by his law office secretary of the trial setting, that he was not in his law office after September 6 or 7, and that he had no personal awareness of the date of the trial setting. It appeared from counsel's testimony that the trial date fell within the period of the 1969 special session of the General Assembly, which began on September 8, that as a member of that body counsel was in attendance and active in the General Assembly, and was actually in Jefferson City on its business on September 19, 1969, the date of the setting. Defendants' counsel also testified regarding the meritorious defenses to plaintiffs' action, particularly as to those factors which concerned plaintiffs' claims for treble damages and for punitive damages, and at the hearing stressed the lack of notice of the amendments to plaintiffs' petition which had been made at the beginning of the trial. Plaintiffs introduced no evidence in opposition to defendants' motion.

At the conclusion of the hearing the court took the matter under advisement, and three days later, on October 17, 1969, well within the 30 day period prescribed in Civil Rule 75.01, V.A.M.R., the court 'tactfully overruled' (as expressed in Vaughn v. Ripley, Mo.App., 416 S.W.2d 226, 227) the defendants' motion and entered an order, on the court's own motion, setting aside the judgment and decree and granting defendants a new trial on all...