Doughty v. Terminal R. Ass'n of St. Louis

• Decision Date: 11 June 1956
• Docket Number: No. 2,No. 44964,44964,2
• Court: Missouri Supreme Court
• Parties: Bryan DOUGHTY, Appellant, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, a corporation, and Gulf, Mobile & Ohio Railroad Company, a corporation, Respondents

Page 119

291 S.W.2d 119

Bryan DOUGHTY, Appellant, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, a corporation and Gulf, Mobile & Ohio Railroad Company, a corporation, Respondents.

No. 44964.

Supreme Court of Missouri, Division No. 2.

June 11, 1956.

Robert W. Henry and John J. Cole, St. Louis, for appellant.

Thompson, Mitchell, Thompson & Douglas, Edmonstone F. Thompson, Richard P. Conerly, St. Louis, for respondent, Gulf, Mobile & Ohio Railroad Company.

Warner Fuller, John P. Montrey, St. Louis, for respondent, Terminal Railroad Association of St. Louis.

EAGER, Presiding Judge.

The appeal here is from a refusal to vacate, on motion, an order dismissing with prejudice appellant's suit for personal injuries. The case is here on an agreed statement of facts. The suit was originally filed by appellant on July 21, 1952, against defendants Terminal Railroad Association of St. Louis and Gulf, Mobile and Ohio Railroad Company; the appellant, whom we shall designate as plaintiff, was an employee of the Pullman Company. Answers were filed, and prior to the events now related, the case had been regularly set for trial three times. On October 29, 1953, plaintiff's counsel withdrew and notified plaintiff by letter that he had done so by leave of court, that the case had been set for trial on December 7, 1953, and that it would then be dismissed if he did not have an attorney; on December 9, 1953, the case not having been dismissed, new counsel entered his appearance on behalf of plaintiff, and the cause was 'reinstated on the trial docket for Monday, March 29, 1954.' On January 13, 1954, the new counsel withdrew by leave of court. On March 11, 1954, the case was regularly included in the 'call of jury cases' published in the St. Louis Daily Record for trial on March 29, 1954. On that day, March 29, 1954, the trial docket was called in Division One of the Circuit Court of the City of St. Louis, and there was no response; thereupon the case was 'passed until Thursday,' April 1, 1954. There was no further notice or publication; other cases on the trial docket were called on Tuesday and Wednesday, March 30 and 31, and on the bottom of the Wednesday docket sheet this case appeared, with the notation: 'pass to Thursday.' On Thursday, April 1, 1954, the case was again called and there was no response. Thereupon the following order was entered: 'It is ordered by the Court that this cause be assigned to Division No. 1. Now at this day this cause being called for hearing on a pre-emptory call, and the plaintiff although being duly called, comes not, it is ordered by the Court that the plaintiff's cause of action be dismissed, with prejudice, and the plaintiff pay the costs of this suit, and that execution issue therefor.' On February 24, 1955, nearly eleven months later and through new counsel, plaintiff filed his motion to set aside and vacate the judgment under Section 511.250 RSMo 1949, V.A.M.S. Therein he recited certain of the foregoing facts, and alleged that no notice was given 'of the setting' for April 1, 1954, or of the dismissal, that he had no opportunity to be heard 'in regard to such dismissal,' that the dismissal with prejudice was made in violation of the rules of the circuit court and certain sections of our statutes, that he had no knowledge thereof for several months, that he was seeking counsel, and that he believed he had a meritorious cause. Certain rules of the circuit court appear in the agreed statement, which, briefly digested, provide in substance as follows: Rule 3-E. One day's written notice shall be required for the hearing by the presiding judge of all applications and motions. Rule 4-A. Civil causes shall be originally assigned to Div. 1, and thereafter assigned by it to the various Divisions; E. The Clerk of Div. 1 shall arrange trial settings of all jury cases on the trial calendar; F. The trial calendar of jury cases shall be called in Div. 1 on the day set and where the parties are ready the cases shall be assigned in a stated manner to the various divisions, continuing thus during the week; G. Reasonable notice of all settings for trial shall be made by entry in the trial calendar, and by publication in the St. Louis Daily Record; Q--The Presiding Judge may, when he deems it advisable, and shall during the first week in September of each year, upon 10 days' published notice, call such pending cases as he may select, and which may, in his discretion, be continued or dismissed; and the failure to respond at such call shall be ground for dismissal.

On April 13, 1955, plaintiff's motion to vacate was overruled, as was also an oral request for transfer to the Equity Division; the latter point is not briefed here and we may disregard it. The statutory references in plaintiff's motion are not urged here, and, moreover, do not seem material to the issue. Plaintiff's sole point is that he was not given any notice of a setting or hearing for April 1, 1954, and that he was thereby deprived of all opportunity to be heard, particularly as to the manner of the dismissal. As a procedural matter, counsel for plaintiff insist that the motion to vacate under Sec. 511.250 aforesaid, should not only be held sufficient to reach irregularities apparent on the face of the record, but that it should be considered also as a motion in the nature of a writ of error coram nobis which would reach and remedy errors of fact dehors the record; they recognize that the facts referred to must be such as would, if known, have prevented the rendition of the judgment, and are thus to be distinguished from 'ordinary judicial errors in a judgment reached in accord with established rules of civil procedure.' Murray v. United Zinc Smelting Corp., Mo., 263 S.W.2d 351, 354; Crabtree v. Aetna Life Ins. Co., 341 Mo. 1173, 111 S.W.2d 103, 106; Casper v. Lee, 362 Mo. 927, 245 S.W.2d 132. Under the authorities it may be doubted whether the present motion should be so broadly considered, for the facts now urged would certainly not seem to have been 'unknown to the court', Casper v. Lee, 362 Mo. 927, 245 S.W.2d 132, loc. cit. 141; but, in the view we take of the case, the point need not be decided. We rule that on the merits and regardless of the procedural aspects, the court did not err in overruling the motion.

Plaintiff's counsel rely principally on the cases of Bindley v. Metropolitan Life Ins. Co., 358 Mo. 31, 213 S.W.2d 387, and Crispin v. St. Louis Public Service Co., 361 Mo. 866, 237 S.W.2d 153. In the Bindley case the cause had been placed upon a 'hold' docket where, under the court...