Farrell v. De Clue

• Citation: 382 S.W.2d 462
• Decision Date: 28 September 1964
• Docket Number: No. 31757,31757
• Parties: Anna FARRELL, Plaintiff-Appellant, v. Lawrence DeCLUE and Texflame Gas Corporation, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 462

382 S.W.2d 462

Anna FARRELL, Plaintiff-Appellant, v. Lawrence DeCLUE and Texflame Gas Corporation, Defendants-Respondents.

No. 31757.

St. Louis Court of Appeals, Missouri.

Sept. 28, 1964.

Motion for Rehearing or to Transfer to Supreme Court Denied

Oct. 26, 1964.

Roberts & Roberts, Raymond R. Roberts, Farmington, for plaintiff-appellant.

Smith & Colson, David L. Colson, Farmington, for defendants-respondents.

BRADY, Commissioner.

This appeal arises after the second trial of this cause. The determinative issue is whether the plaintiff can appeal alleging the trial court prejudicially erred when it set aside the original judgment which had been rendered upon defendants' default.

The facts are not in dispute. Plaintiff filed her petition praying for damages in the amount of $10,000.00. Personal service was had on each of the defendants. When the defendants were fourteen days in default, the trial court heard the plaintiff's case, a jury having been waived. Evidence was heard and the court awarded judgment that same day, January 10, 1962, for plaintiff in the sum of $9,000.00. On January 24 of that year, fourteen days after the rendition of this judgment, the defendants filed a motion '* * * to set Aside the Verdict and Judgment Entered Thereon and to Grant Each Defendant a New Trial.' This motion was not verified; neither was it accompanied by affidavit nor was testimony offered in support of the motion. The grounds for this motion are set out in Farrell v. DeClue, Mo.App., 365 S.W.2d 68, l. c. 70. On March 10, 59 days after rendition of the judgment, the trial court entered its order granting the defendants a new trial but giving no reasons therefor. The plaintiff filed her notice of appeal two days later and served respondents with a notice calling upon them to file the original brief in that appeal. On March 15, 1962, the trial court entered its order 'nunc pro tunc' in which it stated that the order granting defendants a new trial should be 'amended and corrected' to give reasons for that action. On March 20 the defendants filed joint answers to the plaintiff's petition. Two days after this action the plaintiff filed a motion to set aside the court's 'nunc pro tunc' order and when this was overruled, the plaintiff appealed. By opinion dated February 19, 1963, Farrell v. DeClue, supra, this court held that the so-called 'nunc pro tunc' order was a nullity and that plaintiff's appeal from the order of March 10, 1962, setting aside the default judgment was premature.

Trial was had on September 17, 1963. Before this trial began and at every stage in the proceedings the plaintiff carefully preserved her objections to the trial. This she did by filing a motion to strike defendants' answers prior to setting the case and when this was overruled, by announcing ready subject to the matters stated in that motion; by moving at the close of her evidence that the court enter a directed verdict in accordance with the judgment of January 10, 1962, or for an alternative order preventing the defendants from introducing evidence; and at the close of defendants' case by again moving for a judgment in accordance with that entered January 10 and later set aside. All of these motions were denied. The jury returned a verdict for the plaintiff and against both defendants in the sum of $2,500.00 and judgment was entered in that amount. The plaintiff then filed her timely motion requesting the court to set aside the verdict and judgment for $2,500.00 and to issue execution on the $9,000.00 judgment. This motion was denied and the plaintiff perfected her appeal.

In its pertinent parts, Sec. 512.020 RSMo 1959, V.A.M.S., provides that any party to a civil action who is 'aggrieved' by any judgment entered therein may appeal from certain specified orders of the trial court including '* * * any special order after final judgment in the cause.'

The defendant advances several arguments to support the contention that the plaintiff is not 'aggrieved' within the meaning of Sec. 512.020, supra. He points to the fact that there was no 'unreasonable' delay in getting to trial before a jury; that the plaintiff does not raise any contention of prejudicial error in respect to that trial; and that plaintiff could have gotten a judgment larger than $9,000.00 before the jury. In essence, however, the defendants' argument is based upon the remarks of Faris, J. in the Bussiere case, Bussiere's Adm'r. v. Sayman, 257 Mo. 303, 165 S.W. 796, l. c. 800. There it was stated that it was unnecessary for the plaintiff in that case to 'rush' to appeal from an order setting aside a default judgment because he had two remedies. The first was to stand mute when the case was called and appeal the resultant dismissal. The second was to preserve his point and appeal '* * * if he lost the whole case.' The defendant's basic position is that when the plaintiff elected not to stand mute and appeal a resultant dismissal she agreed to abide by the decision of that trial and could only be considered aggrieved if she lost the whole case.

The plaintiff points out that she has lost $6,500.00 of a judgment which was validly rendered and final in the sense that, as this court held in Farrell v. DeClue, supra, the motion to set aside the default judgment was not a motion for new trial; that she was thereupon entitled to execution except for the trial court's prejudicially erroneous action in setting the judgment aside; that she is still without compensation for her injuries some two years and eight months later (at the date of this opinion); and that the second trial cost her additional expense. The essence of her argument is that the only logical difference between being 'aggrieved' by the loss of the entire judgment and the loss of $6,500.00 of it is one of degree. The plaintiff argues that she may have been more aggrieved if she had lost it all, but she is still aggrieved when she loses $6,500.00 of her judgment.

Some questions of law seem to have an almost homing pigeon instinct. Thus, it is that this court has been repeatedly involved in the development of the law in this jurisdiction on the question of whether an appeal will lie from an order setting aside a judgment rendered upon default. The case law upon this question began with Crossland v. Admire, 118 Mo. 87, 24 S.W. 154, decided by our Supreme Court in 1893. In that case the Supreme Court of this state dismissed an appeal from an order setting aside a default judgment on the ground that such an order was not an order granting a new trial. It based that conclusion upon its finding that a 'trial' is had for the determination of the issues found by the pleadings. At l. c. 91, 24 S.W. at l. c. 154, in the official report the court stated: 'Issues are made under the Code, as well as at common law, by the pleadings. In case of default in pleading, there can be no issues to be tried, and no 'trial' can be had within the meaning of the term as given in the books, and as understood by the profession.' It followed, the court held, that where there had been no trial there could be no new trial and therefore an order setting aside a judgment rendered upon default was not an order granting a new trial and no appeal would lie.

The view of this court that an appeal should lie under such circumstances was first expressed in Bussiere v. Sayman, 171 Mo.App. 11, 153 S.W. 507. In an obvious effort to give the Supreme Court grounds upon which it could distinguish Crossland and thus avoid what this court felt was an inequitable result, the opinion of this court in Bussiere pointed out that when ruling Crossland the Supreme Court did not consider or even mention that provision of our statute dealing with appeals from any special order after final judgment. However, the opinion of this court did recognize that this provision of our statu...