Dougherty v. Rubber Mfg. Co.

• Decision Date: 11 June 1930
• Docket Number: No. 29582.,29582.
• Citation: 29 S.W.2d 126
• Parties: LOUZETTA DOUGHERTY v. MANHATTAN RUBBER MANUFACTURING COMPANY and AMERICAN MUTUAL LIABILITY INSURANCE COMPANY, Appellants.
• Court: Missouri Supreme Court

29 S.W.2d 126

LOUZETTA DOUGHERTY v. MANHATTAN RUBBER MANUFACTURING COMPANY and AMERICAN MUTUAL LIABILITY INSURANCE COMPANY, Appellants.

No. 29582.

Supreme Court of Missouri, Division Two.

June 11, 1930.

Appeal from Circuit Court of City of St. Louis. — Hon. Erwin G. Ossing, Judge.

AFFIRMED.

Ray Bond for respondent.

(1) The circuit court cannot properly set aside a judgment rendered by it and an order allowing appeal, even at the same term, and enter another judgment in a cause, without the existence of legal cause. Thompson v. Wendling, 219 S.W. 671; State ex rel. v. Arnold, 193 S.W. 294; Murphy v. DeFrance, 23 Mo. App. 337. (2) Nor, if judgment has been rendered in a cause and appeal allowed, is it proper for the trial court to set aside the order of appeal and judgment, of its own motion without notice to the parties. State v. Sutton, 232 Mo. 244; State ex rel. v. Schmoll, 251 S.W. 98; Ault v. Bradley, 191 Mo. 709; State v. Beismeyer, 136 Mo. App. 668.

William R. Schneider for appellants.

Respondent complains that the trial court had no right without notice to the parties and on its own motion or at the request of the appellants, to set aside, within the term at which the order was made, the order granting an appeal and set aside its judgment of affirmance of the commission's award and at a later date re-enter the same judgment, merely to allow appellants to file a motion for new trial which had not been filed within four days after the original judgment. There was no modifying or changing of a final judgment. It was set aside and the same judgment re-entered at a later date. It was done to allow a motion for new trial to be filed. No rights of third parties had attached. The defendants whose appeal was set aside are not complaining. In none of the cases cited by respondent do the facts coincide with the facts of the case at bar. Respondent still has the same judgment and appellants are not complaining about the court's order setting aside their first appeal. The motion for new trial was filed within four days after the rendering of the respondent's present judgment. Her motion to dismiss this appeal is not well founded and should be overruled.

HENWOOD, C.

The respondent, Louzetta Dougherty, and Henry F. Dougherty, Jr., widow and minor son of Henry F. Dougherty, deceased, filed with the Workmen's Compensation Commission their claim for death benefits against Manhattan Rubber Manufacturing Company, the employer of the deceased, and American Mutual Liability Insurance Company, the insurer. The proceedings before the commission resulted in a final award of $250 for medical aid, $150 for burial expenses, and a total death benefit of $11,500 payable to Louzetta Dougherty at the rate of $20 per week for 575 weeks, or until her prior death or remarriage, with the remainder to Henry F. Dougherty, Jr. The employer and insurer took an appeal to the Circuit Court of the City of St. Louis, where a judgment was entered affirming the final award of the commission in all particulars, except the award of $250 for medical aid, and from that judgment the employer and insurer were allowed an appeal to this court.

The respondent filed a motion to dismiss the appeal, which was taken as submitted with the case on the merits. As grounds for said motion, the respondent says that the appeal was not taken from the final judgment entered in this cause in the circuit court; that said final judgment was entered on October 8, 1928, at the October term, 1928, of said court; that, on November 22, 1928, during the same term, appellants filed their affidavit for an appeal and were duly allowed an appeal to this court; that, on November 23, 1928, during the same term, without legal or just cause and without notice to the respondent, the circuit court, on its own motion, made an order vacating its final judgment, rendered October 8, 1928, and its order allowing an appeal, made on November 22, 1928; that, on November 24, 1928, during the same term, the circuit court entered a new judgment, identical in terms with its final judgment entered on October 8, 1928; that said new judgment is the judgment appealed from in this cause; that the action of the circuit court, in setting aside its final judgment entered on October 8, 1928, and, in setting aside its order granting an appeal from said judgment, being without just or legal cause and without notice to the respondent, was improper and void; that said new judgment, entered on November 24, 1928, is a nullity; and that the final judgment in this cause is the judgment entered on October 8, 1928.

In this connection, appellants' abstract of the record shows the following proceedings in the circuit court, during its October Term, 1928: On October 8, 1928, the court entered its judgment affirming the order, decision and award of the commission in this cause. On November 22, 1928, appellants filed their affidavit for an appeal, and, by an order duly made and entered of record, were allowed an appeal to this court. On November 23, 1928, the court, of its own motion, vacated and set aside its order of November 22, 1928, allowing appellants an appeal to this court, and its judgment of October 8, 1928, affirming the order, decision and award of the commission. On November 24, 1928, the court entered a new judgment affirming the order, decision and award of the...