Hannibal v. St. Louis Public Service Co.

• Decision Date: 18 March 1947
• Docket Number: No. 27089.,27089.
• Parties: HANNIBAL v. ST. LOUIS PUBLIC SERVICE CO.
• Court: Missouri Court of Appeals

200 S.W.2d 568

HANNIBAL v. ST. LOUIS PUBLIC SERVICE CO.

No. 27089.

St. Louis Court of Appeals. Missouri.

March 18, 1947.

Motion for Rehearing or to Transfer to Supreme Court Denied April 18, 1947.

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

"Not to be reported in State Reports."

Action by Jeannette Lee Hannibal against the St. Louis Public Service Company, a corporation, to recover for injuries allegedly sustained by plaintiff while a passenger on defendant's streetcar. The defendant's motion to dismiss the suit was sustained. Plaintiff's motion to set aside the dismissal was overruled, and the plaintiff appeals.

Judgment of dismissal affirmed.

Morton L. Schwartz, of St. Louis, for appellant.

Frank X. Cleary, of St. Louis, for respondent.

McCULLEN, Judge.

This is an appeal from a judgment of the Circuit Court of the City of St. Louis dismissing an action brought by appellant, as plaintiff, against the St. Louis Public Service Company, respondent, as defendant.

It appears from the record that on May 15, 1944, plaintiff filed a suit against defendant for damages in the sum of $3500 for alleged personal injuries. The suit was numbered 77717-C of the St. Louis Circuit Court. On July 5, 1944, a motion for security for costs was sustained and plaintiff was granted ten days in which to give bond securing the costs or deposit the sum of $50. Said cause No. 77717-C was set for trial on February 25, 1945. On that date it was called for trial, but plaintiff failed to appear to prosecute the cause and it was dismissed at plaintiff's costs for failure to prosecute.

On December 20, 1945, which was about ten months after the above dismissal, plaintiff, through her present counsel, filed the instant suit, which was numbered 93587 of the St. Louis Circuit Court, and, on the same day, her motion to sue as a poor person was sustained by the Circuit Court. It appears from plaintiff-appellant's brief herein that Judge Killoren, then sitting in Division No. 1 of the Circuit Court, informally stated to counsel for plaintiff later in the day, outside of court, that he would set aside his ruling permitting plaintiff to sue as a poor person if the costs in the prior suit were not paid.

Thereafter, on January 9, 1946, defendant filed a motion to dismiss the instant suit, in which motion it set forth the filing by plaintiff of the first suit and the dismissal thereof by the court because of plaintiff's failure to prosecute. Defendant alleged in said motion that the dismissal of the prior suit by the court was with prejudice and operated as an adjudication of the merits of the cause. The motion to dismiss was submitted to the court on February 15, 1946, and taken under advisement. Thereafter, on March 12, 1946, the court sustained defendant's motion to dismiss and filed a written memorandum setting forth reasons for the dismissal. On March 22, 1946, plaintiff filed a motion to set aside said dismissal of the instant suit, alleging in her motion that the dismissal "was based on an erroneous fact, and that the court erred in its holding of law." Plaintiff further alleged in said motion that the prior suit was actually dismissed for failure to prosecute, but that the court in its written memorandum in the instant suit had stated that it was dismissed for failure to post costs. Plaintiff further alleged in her said motion to set aside the dismissal that after the court filed said memorandum the costs in the prior suit were paid, and further alleged in said motion that no formal order was ever given to her or her attorney to pay costs in the prior suit, and that no record entry was ever made in this suit in regard to the payment of prior costs.

On March 27, 1946, plaintiff's motion to set aside the dismissal was submitted to the court and taken under advisement and, on April 12, 1946, it was overruled. On April 20, 1946, plaintiff filed her notice of appeal and was granted leave to appeal as a poor person.

Plaintiff contends in this court that the trial court erred in overruling her motion to set aside the dismissal; that the court ignored the fact that the court costs in the prior suit had been paid between the entry of the memorandum of the court and the filing of the motion to set aside the dismissal herein; that the court also disregarded a correction of fact contained in her motion to set aside the dismissal, namely, that the court erroneously had said in its memorandum in the instant case (referring to the dismissal of the prior suit) that "the case was dismissed for failure to post costs." Plaintiff also contends that the court disregarded the fact, pointed out in her motion to set aside the dismissal, that no formal order was ever given her or entered in the records that the court costs in the prior suit must be paid.

It is not disputed that both the prior suit and the instant suit filed by plaintiff were based upon the same cause of action and were between the same parties plaintiff and defendant. The petition in the prior suit, as well as the petition in the instant suit, alleged the identical cause of action for identical injuries. Both petitions were based upon the alleged negligence of defendant's motorman in closing the door of a streetcar upon plaintiff on December 8, 1942; and both petitions prayed damages for injuries sustained by plaintiff as the result of defendant's alleged negligence on said occasion.

Our new General Code for Civil Procedure went into effect on January 1, 1945, Laws Mo.1943, pp. 353-397, Mo.R.S.A. §§ 847.1 to 847.145. Said General Code governs all proceedings in actions brought after its effective date, and also further proceedings in all actions then pending, except to the extent that in the opinion of the court its application in a particular action pending when the new Code became effective would not be feasible or would work injustice, in which event the former procedure applies. Laws Mo.1943, Sec. 3, p. 357, Mo.R.S.A. § 847.3.

Plaintiff's first suit was dismissed on February 25, 1945. The new General Code for Civil Procedure was in force and effect at that time, and there is nothing in the record in this suit or in the prior suit to show that the court exempted any of the proceedings from the provisions of the new Code.

Section 100, Laws Mo.1943, p. 385, Mo. R.S.A. § 847.100, in so far as pertinent here, provides:

"For failure of the plaintiff to prosecute or to comply with this code or any order of court, a defendant may move for dismissal of an action or of any claim against him."

Section 101 of the new Code of Civil Procedure, Laws Mo.1943, p. 385, Mo.R. S.A. § 847.101, provides as follows:

"A dismissal without prejudice permits the party to bring another action for the same cause, unless the action is otherwise barred. A dismissal with prejudice operates as an adjudication upon the merits. Any voluntary dismissal other than one which the party is entitled to take without prejudice, and any involuntary dismissal other than one for lack of jurisdiction or for improper venue shall be with prejudice unless the court in its order for dismissal shall otherwise specify." (Emphasis ours.)

There is nothing in the record of this case to show that the court did at any time, in connection with its order of dismissal, "otherwise specify." Therefore, by virtue of the...