Guhman v. Grothe

• Decision Date: 03 July 1940
• Docket Number: No. 36357.,36357.
• Citation: 142 S.W.2d 1
• Parties: JOHN S. GUHMAN, Appellant, v. ISIDORE GROTHE, Trustee, EDWARD H. SHEPPLEY, BEN GUTMAN and CLARA GROB GUTMAN.
• Court: Missouri Supreme Court

142 S.W.2d 1

JOHN S. GUHMAN, Appellant, v. ISIDORE GROTHE, Trustee, EDWARD H. SHEPPLEY, BEN GUTMAN and CLARA GROB GUTMAN.

No. 36357.

Supreme Court of Missouri.

Division Two, July 3, 1940.^*

Appeal from St. Charles Circuit Court. — Hon. Edgar B. Woolfolk, Judge.

AFFIRMED.

Alva W. Hurt for appellant.

(1) The trial court's action in dismissing plaintiff's cause of action and entering judgment in favor of defendants was an abuse of discretion and contrary to law, for the reason, that plaintiff's second amended petition was on file, all the defendants were in default thereon, and the cause was not set for hearing nor called for trial. Secs. 796, 953, R.S. 1929; Spurlock v. Railroad, 93 Mo. 16; Voorhees v. Exposition Co., 243 Mo. 418; Bank of Tupelo v. Stomun, 220 Mo. App. 156; Berglar v. University City, 190 S.W. 620. (2) The trial court erred in failing to overrule defendant, Isidore Grothe's motion to dismiss for failure to prosecute, and in entering judgment for defendants, when the matters and things upon which said motion and judgment were based had been abandoned, and plaintiff's second amended petition was and had been on file for a long time and all of defendants were in default, and all of the defendants, save defendant, Isidore Grothe, had ignored all of said legal and court proceedings in said cause, although duly served. Norman v. Hooker, 35 Mo. 366; Gate City Bank v. Strother, 188 Mo. App. 217; Voorhees v. Exposition Co., 243 Mo. 436; State ex rel. Langston v. Canterbury, 124 Mo. App. 241; Collins v. Adriano, 175 S.W. 195; State ex rel. Johnston v. Hiller, 295 S.W. 133; Orchard v. Natl. Exchange Bank, 98 S.W. 827; Norton v. City, 97 Mo. 537. (3) This was an action involving the title to real estate and the trial court's error of entering said judgment, as aforesaid, is apparent upon the face of the record, and void, therefore, is reviewable by this court regardless of a motion for new trial or to set aside. Hecker v. Bleish, 3 S.W. (2d) 1019; Schwettman v. Sander, 7 S.W. (2d) 302; Arcadia Timber Co. v. Harris, 285 S.W. 428.

Wm. Waye, Jr., for respondents.

(1) The motion filed by plaintiff to set aside the order of the court dismissing plaintiff's cause of action was not filed within four days after such order was made by the court, and therefore, if the court committed error, such error was not preserved for review here. Poncot v. Railroad, 176 Mo. App. 225; Kelso v. Ross Const. Co., 85 S.W. (2d) 527, 337 Mo. 202; State ex rel. Conant v. Trimble, 277 S.W. 921; Boegemann v. Bracey, 285 S.W. 992. (2) The motion to dismiss plaintiff's cause of action is not a part of the record proper, and the action of the court on such motion, when not preserved by a timely motion for a new trial, cannot be reviewed by an appellate court. Poncot v. Railroad, 176 Mo. App. 225; Brady v. Brady, 71 S.W. (2d) 42; Barrett v. Stoddard County, 246 Mo. 501. (3) The motion for a new trial must be filed within four days after the rendition of judgment. R.S. 1929, sec. 1005; Landau v. Consumers' Mill Product Co., 36 S.W. (2d) 921; Marsala v. Marsala, 288 Mo. 501; In re Lively, 88 S.W. (2d) 891. (4) The second amended petition filed by plaintiff in this case is wholly insufficient to support any judgment. Jones v. Lumber Co., 175 Mo. App. 26; Barrie v. Ransom, 46 S.W. (2d) 186; Wilson v. Darrow, 223 Mo. 520; Hecker v. Bleish, 3 S.W. (2d) 1008; Curlee Clothing Co. v. Boxer, 51 S.W. (2d) 894; Schwettman v. Sander, 7 S.W. (2d) 301.

BOHLING, C.

Plaintiff appeals from a judgment of the Circuit Court of St. Charles County following an order sustaining a motion to dismiss plaintiff's action for want of prosecution. The review proceedings were lodged in the St. Louis Court of Appeals; but that court transferred the cause here on the ground title to real estate was involved. We have experienced some difficulty with appellant's abstract.

The order sustaining respondent Grothe's motion to dismiss, and judgment was entered April 1, 1936. On April 14, 1936, appellant filed a motion to set aside said order, which motion was overruled May 6, 1936. Respondents make the point that since no motion for new trial or motion in the nature of a motion for new trial was filed within the statutory period of four days (Sec. 1005, R.S. 1929, Mo. Stat. Ann., p. 1272), matters of exception are not for appellate review. [Kelso v. Ross Construction Co., 337 Mo. 202, 226 [11], 85 S.W. (2d) 527, 541 [32].] Appellant's reply brief concedes this, but appellant contends the record proper does not support the judgment because appellant's "second" amended petition was on file, respondents were in default and appellant was entitled to a default judgment when the order sustaining the motion to dismiss was entered.

[1] Appellant's second amended petition, set out only in the bill of exceptions, failed to state a cause of action. It charged that defendants as grantors" caused "a written instrument in the form of warranty deeds" to be recorded, but nowhere alleged any fact upon which a court could render a valid decree "cancelling said deed" and "removing the cloud of the same from plaintiff's title," as prayed. A default judgment against any respondent would have been unenforceable and subject to collateral attack. [Wilson v. Darrow, 223 Mo. 520, 531, 122 S.W. 1077, 1080; Jones v. Bennett Lumber Co., 175 Mo. App. 26, 33, 157 S.W. 864, 867.] In these circumstances, a plaintiff is in no position to take effective advantage of the default of a defendant.

Appellant filed his original petition January 6, 1934. A demurrer to the petition was sustained on February 13, 1934. The second amended petition was filed February 25, 1935. The February, May and October terms, 1935, of court passed. At the February term, 1936, the motion to dismiss for want of prosecution was filed, sustained and judgment entered. The record proper, of course, fails to disclose any indication by appellant upon the consideration of the motion to dismiss of a willingness to prosecute the action.

Possibly another factor, mentioned but not developed in appellant's brief, should receive consideration. The motion to dismiss was filed only on behalf of respondent Grothe. However, we find no showing of record that respondent Grothe was not a necessary party to any determination of appellant's action. If so, appellant, even had he so requested, legally could not have proceeded against the remaining defendants. [Consult Sec. 702, R.S. 1929, Mo. Stat. Ann., p. 913.] Other reasons may exist for reaching the same result on this issue.

[2] Appellant asserts the dismissal may not be sustained since the action had not been called for trial (see Sec. 953, R.S. 1929, Mo. Stat. Ann., p. 1228) or a third petition had not been adjudged insufficient or stricken (see Sec. 796, Ibid.) This review involves a dismissal for failure to prosecute with due diligence, and may be sustained on facts not within the cited statutory provisions. "The power of courts to dismiss a case because of failure...