Foster v. Sayman

• Decision Date: 23 November 1915
• Docket Number: No. 14852.,14852.
• Citation: 181 S.W. 1186
• Parties: FOSTER v. SAYMAN.
• Court: Missouri Court of Appeals

181 S.W. 1186

FOSTER v. SAYMAN.

No. 14852.

St. Louis Court of Appeals. Missouri.

November 23, 1915.

Rehearing Denied December 7, 1915.

Dissenting Opinion January 4, 1916.

Appeal from St. Louis Circuit Court; James E. Withrow, Judge.

"Not to be officially published."

Action by William H. Foster, administrator of the estate of Bertram J. Bussiere, deceased, against T. M. Sayman. Judgment for defendant, dismissing the action, and plaintiff appeals. Affirmed.

See, also, 171 Mo. App. 11, 153 S. W. 507; 257 Mo. 303, 165 S. W. 796.

Charles A. Houts and Frank A. Habig, both of St. Louis, for appellant. Thomas B. Harlan, George E. Mix, Leahy, Saunders & Barth, and Matt G. Reynolds, all of St. Louis, for respondent.

NORTONI, J.

Plaintiff prosecutes this appeal from a final judgment dismissing his petition. The right of appeal from such an order or judgment is to be conceded, but the important question for consideration relates to the right of this court to review the several matters of exception put forward in the argument.

It appears the suit was instituted on July 16, 1910, returnable to the October term of the circuit court of the city of St. Louis. Defendant was duly served by process of summons, but failed to appear — that is, he filed no answer in the case — and on November 25, 1910, at the October term, the court entered an interlocutory default judgment against him, and also ordered that an inquiry of damages be had. Subsequently, at the December term, on January 4, 1911, defendant being still in default, an inquiry of damages was had, and judgment given in favor of plaintiff in an amount of $3,693.65. Thereater, during the same term of court, on January 18, 1911, defendant filed his motion to set aside the judgment by default, to the end that he might be heard on the merits of the case. This motion was duly continued under advisement and sustained by the court at the February term, March 20, 1911. Thereupon the court entered an order setting the final judgment on default aside and plaintiff saved his exceptions thereto. Thereafter, during the same term, on March 21, 1911, plaintiff filed his motion to set aside the order of the court by which the default judgment was vacated, and this motion was overruled on March 29, 1911. Plaintiff likewise excepted to the ruling of the court on this motion. Thereupon plaintiff prosecuted an appeal from the order of the court overruling his motion to set aside the order vacating the judgment, and we held that an appeal would not lie from such an order, in that it was not a final judgment in the case. See Bussiere v. Sayman, 171 Mo. App. 11, 153 S. W. 507. But we certified the case to the Supreme Court, which tribunal declared the same result and dismissed plaintiff's appeal, as will appear by reference to Bussiere's Adm'r v. Sayman, 257 Mo. 303, 165 S. W. 796. Subsequently the mandate of the Supreme Court, dismissing plaintiff's appeal, was filed in the circuit court, and the case was again placed upon the docket.

On November 7, 1914, defendant having failed to appear, the court again entered a final default judgment against him. On November 9th, at the same term, defendant filed a duly verified motion to set aside the default judgment so entered against him on November 7th, and this motion was sustained by the court on December 8, 1914, whereupon the judgment of November 7, 1914, was vacated and set aside under penalty — that is, on the payment of costs by defendant, which were then duly paid. To this order so vacating the judgment by default of November 7th, plaintiff saved his exceptions. Defendant filed his answer, and the cause was set for hearing on February 8, 1915. On February 8, 1915, at the February term, defendant appeared and answered ready for trial; but the plaintiff, though three times solemnly called came not. Thereupon plaintiff's suit was dismissed by the court for his failure to prosecute the same. On February 12th thereafter, at the same term, plaintiff appeared and filed his motion praying the court to vacate and set aside the order dismissing his case and to reinstate the judgment by default of November 7, 1914, against defendant. Thereafter, during the same term, on March 1, 1915, the court sustained plaintiff's motion in part — that is, in so far as it prayed the reinstatement of the case on the docket — and set aside its order dismissing the petition, and reinstated plaintiff's cause for trial. But it overruled so much of the motion as prayed the court to vacate the order of December 8, 1914, setting aside the judgment of November 7, 1914, and reinstating that judgment against defendant. To the action of the court, in so far as it overruled plaintiff's motion, plaintiff duly saved its exception. The case was set down for trial at the same term on March 3, 1915, and on its being called plaintiff failed a second time to appear and answer for trial, whereupon the court a second time entered its order and judgment dismissing plaintiff's cause of action. The order of the court so entered dismissing plaintiff's cause of action on March 3, 1915, is as follows:

"Now, at this day, this cause again being called for trial, comes again the defendant by his attorney; but the plaintiff, although duly called, fails to appear and announce ready for trial, or to apply for a continuance, or to dismiss his cause voluntarily. It is now, therefore, upon motion of said defendant, ordered and adjudged by the court that this cause be and the same is hereby dismissed, for failure to prosecute the same, at the costs of the plaintiff and the Southern Surety Company, the surety on the cost bond herein, for which let execution issue."

Plaintiff duly excepted to the order of the court in dismissing his cause for failure to prosecute, but filed no motion for a new trial or rehearing thereafter. The appeal is prosecuted from the final judgment dismissing the cause of action above set forth. Plaintiff perfected separate term bills of exceptions during the several terms of court prior to the final judgment dismissing the cause, in which are preserved the several motions above mentioned, and affidavits and other evidence touching the matters therein referred to, together with exceptions to all the rulings set out, including an exception in an additional bill preserved after final judgment to the action of the court in entering the final judgment dismissing his cause, from which this appeal is prosecuted. But he interposed no motion for a new trial after the final judgment, and invokes here as such his motion filed on February 12, 1915, in which he prayed the court to set aside both its order of December 8, 1914, by which the judgment of November 7, 1914, was vacated, and to also reinstate his cause of action first dismissed under the order of February 8, 1915. In acting upon this motion, which plaintiff now invokes here as the foundation for review on appeal, the court, as before said, sustained so much of it as related to the reinstatement of plaintiff's cause of action, and reinstated his case on the docket for trial. Only that portion of the motion was overruled which prayed the reinstatement of the judgment of November 7, 1914, against defendant. It therefore appears that, though plaintiff duly excepted to the ruling of the court on this motion, his exception with respect of that matter relates alone to the adverse ruling by which the court declined to set aside its order vacating the judgment by default against defendant and reinstating such judgment in favor of plaintiff as of date November 7, 1914.

So much of this motion as relates to that matter avails nothing here toward calling under review the several exceptions preserved throughout the case, for, indeed, that judgment of the court declining to reinstate the default judgment is in no sense final. The Supreme Court so declared the law in this identical case, and held that such a judgment is not final in character, so as to authorize an appeal therefrom. See Bussiere's Adm'r v. Sayman, 257 Mo. 303, 165 S. W. 796. The court having reinstated plaintiff's petition in accordance with his prayer in that motion, of course the exception is without avail as to that. Subsequently, on February 8th the court, on calling the case, dismissed it for want of prosecution, because plaintiff declined to appear and prosecute it; and this, as before stated, is the final judgment before us. Although plaintiff excepted to the ruling touching this matter, he filed no motion for a new trial or rehearing thereafter, and it is clear we may not review the several matters of exception so vigorously urged upon us. There can be no doubt that adverse rulings made on motions during the progress of a case prior to and leading up to the final judgment entered are matters of exception. Plaintiff recognizes this, for he has saved exceptions throughout in his several bills; but such exceptions may not be reviewed on appeal, though duly accumulated in the bill, unless they are drawn together and again first presented to the trial court for review in a motion for a new trial or rehearing after the final judgment is entered. See Maplegreen R. Co. v. Trust Co., 237 Mo. 350, 363, 141 S. W. 621. In the case last cited the Supreme Court said:

"The office of a motion for a new trial is to gather together those rulings complained of as erroneous and solemnly and formally present them, one by one, in black and white, to the judge, in order that he have a last chance to correct his own errors without the delay, expense, or other hardships of an appeal. This, on the theory that even a judge is entitled to a last chance — a locus pœnitentiæ."

See, also, Bush Const. Co. v. Withnell, 190 Mo. App. 33, 175 S. W. 260.

The motion for a new trial, filed after judgment and exemplified in the bill of exceptions, it is said in another case in the Supreme Court, serves to reach throughout the proceedings theretofore and gather in such exceptions for review as are...