Fireman's Fund Ins. Co. v. Brouk-Ziegler Motor Co., BROUK-ZIEGLER
| Decision Date | 24 November 1992 |
| Docket Number | No. 61171,BROUK-ZIEGLER,61171 |
| Citation | 841 S.W.2d 778 |
| Parties | FIREMAN'S FUND INSURANCE COMPANY, Respondent, v.MOTOR COMPANY, Appellant. |
| Court | Missouri Court of Appeals |
James J. Sauter, Mary Elizabeth Dorsey, Deeba, Sauter, Herd, St. Louis, for appellant.
Ken J. Ryno, Robert M. Hunt, II, Vincent D. Vogler and Assoc., St. Louis, for respondent.
The plaintiff-respondent filed suit in the Associate Division of Circuit Court to collect insurance premiums alleged to be due. The defendant entered an appearance through counsel. The plaintiff then presented interrogatories and requests for admissions to the defendant, with the file showing plaintiff's counsel's certificate of service on defendant's counsel on August 8, 1990. On September 6, 1990, the plaintiff filed a motion for summary judgment accompanied by an affidavit and notice that the motion would be called for hearing at 9:30 A.M. on October 10, 1990. The file contains plaintiff's counsel's certificate that the motion, affidavit and notice were served on the defendant's counsel by first class mail, postage prepaid. The defendant did not appear and, on October 10, 1990, the court entered summary judgment for the plaintiff for $7,101.00 principal and interest. On October 24, 1990, plaintiff's counsel sent a copy of the judgment entry to defendant's counsel and requested discussion.
On November 6, 1990 the defendant filed a motion to set aside the summary judgment, alleging that the plaintiff failed to notify the defendant that the motion would be heard on October 10, 1990; that the clerk failed to serve a copy of the judgment by mail on the defendant as required by Rule 74.03; and that good cause has been shown for the setting aside of the judgment. We will treat this motion as having been properly filed under Rule 74.03 and Rule 74.05(c). There was an accompanying motion to strike the affidavit submitted in support of the motion for summary judgment on the ground that it was legally and factually conclusory. The defendant also filed belated answers to interrogatories and a response to the request for admissions, on that same date.
The defendant's motion was not called up for hearing until after the plaintiff had sued out a garnishment, moved to accelerate the response, and drawn down the proceeds of $9360.32 which had been paid into court. The defendant then moved to quash the garnishment and to require the plaintiff to restore the proceeds to the registry of the court. The motions were continued several times by agreement. The motion to set aside summary judgment was denied on November 7, 1991, the order reciting that the "court does not find good cause to set aside set [sic] judgment." This appeal from that order followed.
The plaintiff alleges that we lack jurisdiction over the appeal, asserting that a motion to set aside a judgment is deemed overruled pursuant to Rule 78.06 if not ruled in 90 days. The defendant's motion, however, was not a post-trial motion in the sense of Rule 78.05. The time for filing 78.05 motions expired on October 25, 1990, fifteen days after the summary judgment was entered. The appeal is from a ruling on motions under Rules 74.03 and 74.05(c), which do not have similar time constraints. Perhaps the Supreme Court might consider modification of those rules in order to ensure prompt disposition, but the present rules do not limit the time for ruling.
The defendant argues first that the trial court erred in failing to make a record on the plaintiff's motion for summary judgment and the defendant's motion to set aside the summary judgment, so that, presumably, the hearings must be repeated. The claim is clearly not well taken as to the motion for summary judgment. The court is enjoined by Rule 74.04(c) to consider "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any...." A motion for summary judgment must demonstrate, on its face or by reference to materials on file with the court, that there is no genuine issue of material fact. The hearing on the motion is not ordinarily an occasion for receiving evidence,...
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In re Marriage of Coonts, 27052.
...an authorized after trial motion. See Kueper v. Murphy Distributing, 834 S.W.2d 875 (Mo.App. E.D.1992), Fireman's Fund Insurance Company v. Brouk-Ziegler Motor Company, 841 S.W.2d 778 (Mo.App. E.D.1992, and Clark v. Brown, 794 S.W.2d 254 (Mo. App. S.D.1990). We decline to follow these cases......
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