Gantz v. Director of Revenue, State of Mo., 67825

Decision Date07 May 1996
Docket NumberNo. 67825,67825
Citation921 S.W.2d 156
PartiesJohn A. GANTZ, Petitioner/Appellant, v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Respondent/Respondent.
CourtMissouri Court of Appeals

Franklin H. Albrecht, St. Louis, for appellant.

Jeremiah W. (Jay) Nixon, Attorney General, James A. Chenault, III, Special Assistant Attorney General, Missouri Department of Revenue, Jefferson City, for respondent.

Before REINHARD, P.J., and KAROHL and GRIMM, JJ.

PER CURIAM.

Petitioner appeals from the circuit court's judgment sustaining the Director of Revenue's (Director) suspension of petitioner's driving privileges and the circuit court's order setting aside a default judgment entered against the Director. We remand in part and dismiss in part.

Petitioner's driving privileges were suspended as a result of allegedly driving with a blood-alcohol content by weight of .10% or more. See § 302.505.1, RSMo 1994. 1 The suspension was sustained after administrative review, § 302.505.2, and petitioner petitioned for a trial de novo, § 302.535. A default judgment was entered against the Director on August 10, 1992. This court reversed the court's refusal to set aside the default judgment, and remanded for an evidentiary hearing on the Director's motion to set aside the default. Gantz v. Director of Revenue, 858 S.W.2d 793 (Mo.App.E.D.1993).

The default judgment was ordered set aside by Judge Quillin on November 30, 1994. The trial de novo was conducted in front of a traffic court commissioner, who found that the suspension should be affirmed. The findings and recommendations of the commissioner were adopted and confirmed by Judge Quillin.

The disposition of the judgment sustaining the Director's suspension of driving privileges is controlled by our recent case of Chamberlain v. Director of Revenue, No. 68964, 921 S.W.2d 138 (Mo.App.E.D.1996). See also State ex. rel. Coyle v. O'Toole, 914 S.W.2d 871 (Mo.App.E.D.1996). In Chamberlain, we held that a suspension/revocation judgment entered after a trial de novo before a traffic commissioner was without legal effect and that the petition remained in the circuit court. Chamberlain, 921 S.W.2d at 139.

Petitioner also addresses a point on appeal to the circuit court's order setting aside the default judgment. We note that a motion to set aside a default judgment is an independent action, the determination of which is an independent judgment. Kueper v. Murphy Distributing, 834 S.W.2d 875, 878 (Mo.App.E.D.1992). "Setting aside a default judgment, if ordered within thirty days of the rendition of that judgment, is a discretionary act from which no appeal lies." St. Louis County v. Taggert, 809 S.W.2d 476, 478 (Mo.App.1991). 2 However, if the court sets aside a default judgment more than thirty days after its rendition, the default judgment has become final and the court's order setting aside the default is immediately appealable. Mid-States Tubulars v. Maverick Tube Corp., 735 S.W.2d 142, 145 (Mo.App.1987). Here, the order setting aside the default was entered by Judge Quillin on November 30, 1994, and set aside a default judgment which became final in September 1992 (before the...

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6 cases
  • Cook v. Polineni
    • United States
    • Missouri Court of Appeals
    • April 28, 1998
    ...Basketball Ass'n v. Harrisburg Professional Sports, Inc., 947 S.W.2d 471, 473 (Mo.App. E.D.1997); Gantz v. Director of Revenue, Mo., 921 S.W.2d 156, 157 (Mo.App. E.D.1996); Mid-States Tubulars, Inc. v. Maverick Tube Corp., 735 S.W.2d 142, 145-46 (Mo.App. E.D.1987). The appeal presents a que......
  • Klaus v. Shelby
    • United States
    • Missouri Court of Appeals
    • November 9, 1999
    ...Ass'n v. Harrisburg Professional Sports Inc., 947 S.W.2d 471, 473 (Mo. App. E.D. 1997) (citing Gantz v. Director of Revenue, State of Missouri, 921 S.W.2d 156, 157 (Mo.App. E.D. 1996)). However, Rule 78.06 and Rule 81.05 allow for the extension of the trial court's control over a judgment f......
  • Pittsburgh Airport Hotel, v. Trans States, ED 82007.
    • United States
    • Missouri Court of Appeals
    • October 14, 2003
    ...ninety days after the entry of judgment—well after it became final—is treated as an independent action. See Gantz v. Director of Revenue, 921 S.W.2d 156, 157 (Mo.App. E.D.1996). Thus, the trial court's disposition of that motion is an independently appealable judgment that must meet all pre......
  • Doran v. Doran
    • United States
    • Missouri Court of Appeals
    • September 25, 2000
    ...is independent of the underlying judgment." Moore v. Baker, 982 S.W.2d 286, 288 (Mo.App. 1998). See also Gantz v. Director of Revenue, 921 S.W.2d 156, 157 (Mo.App. 1996); Clark v. Brown, 794 S.W.2d 254, 256 (Mo.App. 1990). "[M]aterial facts in issue in a former action and judicially determi......
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