J.J. Newberry Co. v. Baker
| Citation | 205 S.W.2d 935,239 Mo.App. 1130 |
| Parties | J. J. Newberry Company, a corporation, Respondent, v. Walter A. Baker, Louis Renschen, Mamie Newton, Dorothy Kupfensteiner, Charlotte Novotny, and La Verne Toler, Appellants |
| Decision Date | 18 November 1947 |
| Court | Court of Appeal of Missouri (US) |
Appeal from the Circuit Court of the City of St. Louis; Hon. Robert J. Kirkwood, Judge.
Reversed and remanded (with directions).
Allen H. Whittington for appellants.
(1) Order overruling Motion to Strike Entry of dismissal is appealable as a special order after judgment. Section 126 Civil Code of Missouri; Mandel v. Bethe, 170 S.W.2d 87. (2) The Court erred in overruling defendants' motion to strike out the entry of dismissal. (a) Plaintiff had no right to dismiss without notice to defendants. State ex rel. J. Hahn Bakery v. Anderson, 269 Mo. 381, 190 S.W 857; State ex rel. Big Bend Quarry v. Wurdeman, 309 Mo. 341, 274 S.W. 380; Mandel v. Bethe, 170 S.W.2d 87. (b) Contrary to the face of the record, no valid order of dismissal was made. State ex rel. Borsenberger v McElhinney, 38 S.W.2d 281; Nordquist v. Armourdale State Bank, 225 Mo.App. 186, 19 S.W.2d 553; Campbell v. Carrol, 35 Mo.App. 640; Kansas City Pump Company v. Jones; 126 Mo.App. 536, 104 S.W. 1136. (3) Defendants are entitled to a reasonable time within which to file their motion for damages on the injunction bond. (a) The motion for damages could not properly be filed before a final disposition of the whole case, and within the same term of court. Cohn v. Lehman et al., 93 Mo. 574, 6 S.W. 267; State ex rel. Hermann v. Green, 230 Mo.App. 805, 76 S.W.2d 432. (b) To permit plaintiff to dismiss without notice on the last full day of the term would be prejudicial to defendants. Campbell v. Carrol, 35 Mo.App. 640; Mandel v. Bethe, 170 S.W.2d 87.
Wayne Ely for respondent.
(1) The order overruling defendants' motion to strike the entry of dismissal is not an appealable order. (a) No appeal lies in absence of statute allowing it. Segall v. Garlichs (Mo. S. en banc, 1926), 281 S.W. 693, 694; State ex rel. Union Electric Light & Power Co. v. Sevier, Judge, 98 S.W.2d 980, 982; State ex rel. Conant v. Trimble, 311 Mo. 128, 277 S.W. 916, 921; Piatt v. Heim & Overly Realty Co., 117 S.W.2d 327, 330. (b) Defendant cannot appeal from a voluntary dismissal of plaintiff's case "because he is not aggrieved by it within the meaning of the statute allowing appeals." Fenton v. Thompson, 176 S.W.2d 456, 459 [4, 5]; Sharp v. Stiles et ux., 187 S.W.2d 770, 773 [3-5]. (2) The court did not err in overruling defendants' motion to strike out the entry of dismissal. (a) The case had not been finally submitted to the court; defendants had not filed any counterclaim, crossclaim, or other plea for affirmative relief. Therefore, plaintiff had the right to dismiss the action. Section 99, Civil Code of Missouri; Sharp v. Stiles, 187 S.W.2d 770, 773 [3-5]. Newberry Co. v. Baker -- Respondent's Brief.
This is an appeal from an order of the Circuit Court overruling defendants' motion to strike from the record and to hold as void an entry of dismissal and discharge of the surety in an injunction suit. The motion was filed within three days but after the term to which the entry of dismissal and discharge of the surety was made.
Plaintiff brought suit for an injunction against defendants in this case, and on the 1st of May, 1946, a temporary restraining order was issued against defendants after plaintiff had given a surety bond in the sum of twenty-five hundred dollars as required by the court.
The transcript of the record then recites that on the 6th day of June, 1946, on the court's own motion, the cause was continued to the 28th day of June, with the restraining order remaining in full force until the 28th of June, but not thereafter. The next entry shown in the transcript is dated the 29th day of November, 1946, which recites that the cause was dismissed by plaintiff and at plaintiff's costs, and that the National Surety Company as surety on the bond filed in the case was discharged. The day following the date of this entry was the last day of the term, and after the term had ended, and on the 2nd day of December, defendants filed their motion to strike the record entry of November 29. The reasons assigned for the motion are that the dismissal was not actually by leave of court, that it was made by the clerk in the absence of the Judge, that no notice was served on defendants of plaintiff's intention to dismiss, and the liability of the surety on its bond had not been adjudicated. With this motion to strike the entry of dismissal and discharge of the surety from the record was filed a motion for damages on the injunction bond.
On the 4th of December a hearing was had upon the motion, and defendants called to the stand the clerk of the division, who related that the entry complained of was made by him from a memorandum which read as follows: The memorandum bore the signature of the attorney for the plaintiff. The clerk stated that he did not recall whether the memorandum had been given to him or left upon his desk, and he further stated that he thought it was late in the afternoon when he came into possession of it, and that the Judge of the division was not present at the time. He stated that he did not know whether or not the Judge had approved the memorandum and that he had no directions from the court to file it. This was all that was presented by the attorney for defendants in support of their motion. Thereafter plaintiff's attorney requested the attorney for defendants to take the stand and introduced in evidence two letters that had been exchanged between them relative to the case. The first letter, plaintiff's exhibit A, was from plaintiff's attorney to defendants' attorney, dated November 18, 1946, and was in part as follows:
This letter was answered by a letter from defendants' attorney to plaintiff's attorney on November 19, 1946, which letter was offered as plaintiff's exhibit B, and is in part as follows:
No further pertinent testimony or evidence was offered on the motion except a statement by defendants' counsel that he did not file a motion for damages on the bond as suggested in the letter from plaintiff's attorney because such a motion would have been premature if filed before the dismissal of the suit for injunction.
On the 13th of January, 1947, the court overruled defendants' motion to strike the entry, and it is from this that defendants have appealed.
The motion by defendants to strike the entry of dismissal and discharge of the surety was filed within three days after the entry was made but within that interim the September term had expired. The fact that the term to which the entry was made had passed seems to have been a factor which caused defendants to attack the entry complained of with the motion to have it stricken from the record and declared void. They sought to have the entry held void because they proceeded in the Circuit Court and proceed in this court on the theory that actions for injunction are not under the Civil Code, and that with the passing of the term to which the entry was made the court lost jurisdiction to set aside an order discharging the surety and to hear a motion for damages on the bond. It is true that injunctions are covered by a special article as a special procedure (Art 7, Ch. 8, Revised Statutes Missouri, Mo. R. S. A.), but the Civil Code provides in section 2, Mo. R. S. A., 847.2, that it shall govern procedure in the trial and appellate courts "in all suits and proceedings of a civil nature whether cognizable as cases at law or in equity, unless otherwise provided by law." Sec. 6(c) of the Code and sec. 847.6 Mo. R. S. A., provides the period of time ...
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