Foger v. Johnson
| Decision Date | 03 December 1962 |
| Docket Number | No. 23596,23596 |
| Citation | 362 S.W.2d 763 |
| Parties | Vernon Neal FOGER, Respondent, v. Goldie M. JOHNSON, Appellant. |
| Court | Missouri Court of Appeals |
Billy S. Sparks, Thomas J. Daly, Linde, Thomson, VanDyke, Fairchild & Langworthy, Kansas City, for appellant.
Morris Dubiner, Donald E. Raymond, Kansas City, for respondent.
This is an appeal by the defendant from the action of the court sustaining plaintiff's application for an order nunc pro tunc to correct a judgment.
On September 23, 1959, plaintiff filed a petition in the Circuit Court of Jackson County wherein he alleged that on June 7, 1959, he was a passenger in a Dodge automobile being operated in a westerly direction on 31st Street near the 2200 block in Kansas City, Missouri; that said Dodge car was stopped at said time and place and was waiting in a line of traffic; immediately in back of the car in which plaintiff was a passenger was a De Soto automobile also stopped; that at said time defendant was operating her Chevrolet automobile in a westerly direction on 31st Street, to the rear of the DeSoto car and to the rear of the automobile in which plaintiff was a passenger; that defendant operated her automobile so negligently and carelessly as to cause the same to collide with great violence into the rear of the standing DeSoto car and to cause it to come into violent collision with the rear of the Dodge car in which plaintiff was a passenger, and as a direct result of defendant's negligence plaintiff sustained serious and permanent injuries.
Defendant answered this petition and then on February 15, 1961, filed interrogatories to be answered by plaintiff. Copies of these interrogatories were not served upon plaintiff's attorney as required by Sections 510.020 and 506.100 V.A.M.S. On May 9, 1961, defendant filed her motion to compel plaintiff to answer the interrogatories, and on June 9, 1961, the court ordered plaintiff to answer the same within fifteen days. When the motion was filed, plaintiff's attorney got a copy of the interrogatories from the court file, but plaintiff was then on active duty in the armed services and could not be reached in time to answer the same in the manner required by the statute (Sect. 510.020.)
On July 13, 1961, the court entered an order dismissing plaintiff's petition. This entry did not specify that the dismissal was without prejudice and the court overlooked the effect of the Civil Rule No. 67.03, V.A.M.R. under which the dismissal was with prejudice.
On November 7, 1961, plaintiff moved to correct the judgment of dismissal to show that the dismissal was without prejudice. The motion was heard November 10, 1961. Both parties appeared by their attorneys. During the hearing the following statements were made:
'The Court: Well, it is unfortunate, but I think in the interest of justice--I don't know anything about the merits of the case, but in the interest of justice, if this...
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