Hill v. City of St. Louis

• Citation: 20 Mo. 584
• Parties: HILL, Defendant in Error, v. THE CITY OF ST. LOUIS, Plaintiff in Error.
• Decision Date: 31 March 1855
• Court: United States State Supreme Court of Missouri

20 Mo. 584

HILL, Defendant in Error,

v.THE CITY OF ST. LOUIS, Plaintiff in Error.

Supreme Court of Missouri.

March Term, 1855.

1. A circuit court has no power to insert a clause in a judgment, authorizing the party against whom it is rendered to move to set it aside at the next term; and where upon motion made in pursuance of such leave, a judgment was set aside at the next term, and a new judgment rendered, it was treated as a nullity by the Supreme Court, and the first judgment re-instated.

Error to St. Louis Circuit Court.

The case is sufficiently stated in the opinion of the court.

T. T. Gantt, for plaintiff in error.

S. A. Holmes, for defendant in error.

RYLAND, Judge, delivered the opinion of the court.

This was a petition for an injunction, restraining the collection of taxes by the city of St. Louis for the year 1850, which had been assessed upon certain property of the petitioner.

The points relied on for the granting of the injunction were the same that were shown in the case of Benoist v. The City of St. Louis, reported in 19 Mo. 179. The city filed her answer, and the case was continued from time to time until at the November term, 1853, it was, on the motion of the petitioner, by her counsel, dismissed. The order of dismissal was on the 21st day of February, 1854, still being the November term, 1853. The dismissal was at the costs of the petitioner.

It was agreed at the same time, and was so embodied in the order, that the petitioner pay within ten days the said costs and taxes assessed, with interest from the date of the injunction into the court, and in default thereof, that execution issue therefor. Afterwards, at the same term, to-wit, on the 11th day of March, 1854, the petitioner having failed to pay the taxes, costs and interest, within the ten days, the Circuit Court on motion of the city by her counsel, rendered a judgment against the petitioner for the amount of said taxes, costs and interest from the 22nd day of January, 1851, and for execution therefor, which judgment was for the sum of $231.60, being the amount of taxes and costs and the interest thereon, together with the costs of this suit. After the formal entry of this judgment in favor of the defendant against the petitioner, an order in the following terms is entered: “And it is further ordered, that said plaintiff have leave to file her motion to set aside this judgment, and to present and file her bill of exceptions to the proceedings herein, on or before the first day of the next term of this court.”

The plaintiff afterwards, at the April term, 1854, made her motion as follows, after naming the parties:

“Now at this day in pursuance of leave heretofore given, comes the plaintiff by her attorney, and moves the court to set aside the assessment of damages, and the judgment therefor, upon the dismissal of this suit, for the following reasons: 1. Because the court erred in giving judgment upon said dismissal for the amount enjoined, and six per cent, damages on such amount. 2. Because the court, upon such dismissal, erroneously proceeded to assess the damages of its own accord, without giving the plaintiff an opportunity to be heard upon such assessment.”

This motion was sustained by the court, so far as it relates to the assessment of damages, and the judgment heretofore rendered was, as regards the damages on the dissolution of the injunction, set aside. On the 29th of May, at the said April term the parties appear again in court and submit to the court the question of damages to which the defendant is entitled by reason of the dissolution of the injunction sued out in the case. It is then considered by the court that the defendant recover of the plaintiff the sum of $194.90 as and for the said damages, together with the costs of suit, and that execution issue therefor, giving no damages on the dissolution of the injunction. The city moved the court to review and reconsider the judgment in this cause, and to amend and correct the assessment of damages by adding thereto interest at the rate of six per cent. per annum from the date of the injunction to the present time. This motion was overruled and excepted to, and the city brings the case here by writ of error.

The points raised by the city counsellor on this record question the power of the Circuit Court to set aside the judgment given at the November term, 1853, by any order which that court could make at the April term, 1854; also the ruling of the Circuit Court in refusing to allow damages on the dissolution of the injunction.

1. In the consideration of this case, should this court be of the...