Harkness v. Jarvis

• Decision Date: 31 May 1904
• Citation: 182 Mo. 231,81 S.W. 446
• Parties: HARKNESS et al. v. JARVIS et al.
• Court: Missouri Supreme Court

81 S.W. 446

182 Mo. 231

HARKNESS et al. v. JARVIS et al.

Supreme Court of Missouri, Division No. 2.

May 31, 1904.

JUDGMENT — DEFAULT — SETTING ASIDE — MOTION — POWER OF COURT AT SUBSEQUENT TERM — STATUTE — APPEAL AND ERROR.

1. A motion to set aside a judgment by default is not a motion for a new trial, within the meaning of the statute requiring a motion for a new trial to be filed within four days after rendition of the judgment.

2. Where a motion to set aside a judgment by default was filed at the same term that the default was entered, it is not essential to the retention of power by the court to dispose of the motion at a succeeding term that the motion should have been submitted and taken under advisement until the subsequent term.

3. The trial court is acting within its power when it sustains a motion to set aside a judgment by default at a term subsequent to that at which the motion was filed, and in which the default was entered, under Rev. St. 1899, § 1611, providing that an adjournment of the term of court before the business of that term is disposed of shall not operate to evade or discontinue proceedings pending, and, without the statutory provision, such motion, in the absence of express limitation, passes from one term to the other, though no special or general order of continuance was made in reference to it.

4. Large discretion is lodged in the trial court in acting on motions to set aside judgments by default, and, where the discretion is exercised in setting aside a judgment, it is less apt to be interfered with on appeal than if the motion had been denied.

5. Where plaintiffs, who had obtained a judgment against defendants by default, rested their objection to a motion to set it aside on a denial of the power of the court to act on the motion, and did not dispute the reasons urged by defendants for setting aside the judgment, the exercise of the discretion of the court in setting aside the judgment is conclusive on appeal.

Appeal from Circuit Court, Jackson County; Jno. W. Henry, Judge.

Action by Lamon V. Harkness and another against Frank Jarvis and another. From an order setting aside a default judgment, plaintiffs appealed to the Kansas City Court of Appeals, and the case was certified by that court to the Supreme Court, pursuant to constitutional provisions. Affirmed.

J. C. Williams and L. A. Laughlin, for appellants. Powell & Powell, for respondents.

FOX, J.

In pursuance of the provisions of the Constitution, this cause was certified to this court by the Kansas City Court of Appeals for the reason that the opinion by that court, and the conclusions reached, are in conflict with the decision of the St. Louis Court of Appeals in Head v. Randolph, 83 Mo. App. 284. The opinion of the Kansas City Court of Appeals correctly and fairly states the case, from which arises the most important legal proposition in this cause. It is brief, and we adopt it, and here reproduce it: "Plaintiffs brought this action, returnable to the January, 1901, term, to recover judgment on a promissory note. There was personal service on defendants, but, when the case was called for trial at said January term, defendants did not appear; neither did they file an answer. Judgment was rendered for plaintiffs by default. After the expiration of the four-days time allowed for motions for new trial and in arrest of judgment, but at the same term, the defendants filed a motion to set aside the judgment for reasons therein alleged. The motion was not acted on by the court at that term, but went over to the following April term, without any special order of continuance. At the latter term the motion was sustained." Following the action sustaining motion to set aside judgment, on April 24, 1901, defendant Jarvis filed his separate answer to plaintiffs' petition. "And afterwards, to wit, on the 22d day of June, 1901, said cause coming on to be heard, and said plaintiffs failing and refusing to appear and prosecute their said suit, this cause was dismissed, and it was adjudged by the court that the defendants go hence without day, and have and recover their costs in this behalf expended of plaintiffs." From this judgment, plaintiffs in due time and proper form perfected their appeal in this cause, and it is now before us for determination.

Opinion.

It is apparent from this record that there is but one vital proposition presented for our consideration. It will be observed that the motion filed in this cause to set aside the judgment was filed at the same term at which the judgment was rendered, but not within four days of its rendition; that no special or general order was made continuing it to the subsequent term, and at such following term the motion was taken up, and by the court sustained. The crucial question is, did the court have any power to entertain the motion at such subsequent term of the court, and enter its order sustaining it? The correct answer to that question solves this controversy.

First, the motion filed in this cause was not a motion for a new trial, and cannot be so treated. The action upon it may result in a new trial, but it cannot be regarded as the motion for new trial contemplated by the statute, which must be filed within four days after the rendition of the judgment. Childs v. Ry. Co., 117 Mo. 414, 23 S. W. 373, majority opinion by Black, J. That judgments rendered remain in the breast of the court during the entire term at which they were rendered, and may be set aside or vacated by the court at any time during the term upon its own motions, is conceded; and it is equally well settled that a motion to set aside or vacate a judgment, independent of the statute in respect to motions for new trial and in arrest of judgment and the time of filing, may be filed by either party any time during the term at which the judgment was rendered. This is fully recognized in one of the early cases in this court (Williams v. The Court, 5 Mo. 248), and in the much more recent case of Childs v. Ry. Co., supra. In the last-mentioned case the question of the power of the court to act upon a motion to set aside a judgment filed out of time at a subsequent term, and the effect of such motion upon the judgment, was sharply presented. Black, J., who wrote the majority opinion, says: "As a general rule, a judgment cannot be set aside by the court rendering it after the term at which it was rendered, but during the term it may be set aside. And a motion filed at that term for that purpose, and continued over to the next term, suspends the judgment, so that the motion may be sustained at the succeeding term. Until the motion is disposed of, the judgment is not a finality." During the course of the opinion the learned and esteemed judge further states: "A motion to set aside a judgment strikes at its validity, and, when filed at the term at which the judgment was rendered, and continued to the next term, has the effect to suspend the judgment so that the court can act upon the motion the same as at the prior term. The proceedings remain in the breast of the court until the motion is disposed of, and the appeal taken at the time when the motion is overruled brings up the same matters for review as if taken at the term when judgment was entered." It is apparent...