Jones v. Marble Head Lime Co.

• Citation: 132 S.W. 287,152 Mo.App. 79
• Parties: LOUISA JONES, Appellant, v. THE MARBLE HEAD LIME COMPANY, Respondent
• Decision Date: 05 December 1910
• Court: Missouri Court of Appeals

132 S.W. 287

152 Mo.App. 79

LOUISA JONES, Appellant, v. THE MARBLE HEAD LIME COMPANY, Respondent

Court of Appeals of Missouri, Springfield

December 5, 1910

Appeal from Jasper Circuit Court.--Hon. David E. Blair, Judge.

Judgment affirmed.

D. B Jones for appellant.

The mandate from the Kansas City Court of Appeals reversing the judgment of the trial court on the non-suit judgment, was filed April 1, 1908, and the present suit was commenced on the 28th day of April, 1908. It is our contention that plaintiff's case was not barred by the Statute of Limitations, and that this contention is supported by the following authorities. Mason v. Railroad, 125 S.W 1128; Wetmore v. Crouch, 188 Mo. 653, 87 S.W. 954; Chouteau v. Rouse, 90 Mo. 191; Estes v. Fry, 166 Mo 70.

McReynolds & Halliburton for respondent.

(1) This action having been brought by the wife of the deceased under sections 2865 and 2866, Revised Statutes of Missouri, 1899, and the petition not alleging there are no minor children, must have been commenced within six months after the death of her husband or she lost her right of action. Barker v. Railroad, 91 Mo. 86; Packard v. Railroad, 181 Mo. 421. (2) Section 2868, R. S. 1899, does not apply to plaintiff, and only applies to those cases where the preceding sections provide for bringing an action within one year. De Both v. Coal & Mining Co., 141 Mo. 505; Gerren v. Railroad, 60 Mo. 511; Revelle v. Railroad, 74 Mo. 441; State ex rel. v. Musick, 130 S.W. 398. (3) A motion for new trial filed out of time shall not be considered and all the court can do is to strike it from the files. St. Joseph v. Robinson, 128 Mo. 2; St. Louis v. Boyce, 130 Mo. 573; Long v. Hawkins, 178 Mo. 107; Harkness v. Jarvis, 182 Mo. 239; Scullin v. Railroad, 192 Mo. 4; Head v. Randolph, 83 Mo.App. 688; Childs v. Railroad, 117 Mo. 423. (4) While the court at any time, on its own motion, during the April term, 1906, might have set aside the non-suit and granted a new trial, after the adjournment of the term it had no jurisdiction at a succeeding term to do so, and the going over the term of a motion for a new trial filed out of time did not give the court jurisdiction to act either on the motion or on its own motion. Orvis v. Elliott, 65 Mo.App. 100; Scott v. Smith, 133 Mo. 618; Ensor v. Smith, 57 Mo.App. 585; Wight v. Railroad, 20 Mo.App. 481; Nelson v. Ghislin, 17 Mo.App. 663; McLaren v. Wilhelm, 50 Mo.App. 658; Anderson v. Perkins, 52 Mo.App. 527; Martin v. Tobacco Co., 52 Mo.App. 655; Danforth v. Lowe, 53 Mo. 217; Childs v. Railroad, 117 Mo. 414; State ex rel. v. Harper, 56 Mo.App. 611; Orvis v. Elliott, 65 Mo.App. 96.

NIXON, P. J. Cox, J., concurs; Gray, J., not sitting.

OPINION

NIXON, P. J.

A summary of the steps taken in the litigation of which this appeal is the culmination is necessary to a complete understanding of the one question discussed herein.

(1) Riley Jones died in September, 1905, from the effects of an injury received at the lime quarry of the Marble Head Lime Company, near Sarcoxie, Jasper county, Missouri. (2) Appellant, his widow, filed suit on February 15, 1906, and the case came on for trial at the April term, 1906, of the circuit court of Jasper county, resulting in plaintiff taking a non-suit (on April 25, 1906) with leave to file a motion to set the same aside. (3) On May 1, 1906, the motion to set aside the non-suit and grant a new trial was filed. (4) This motion went over to the October term, 1906, when it was sustained, the defendant thereupon perfecting its appeal to the Kansas City Court of Appeals. This branch of the case is discussed in the case of Jones v. The Marble Head Lime Co., 128 Mo.App. 345, 107 S.W. 420. On January 27, 1908, the Kansas City Court of Appeals reversed the judgment and remanded the cause with directions to the trial court to enter judgment on the non-suit because it appeared that more than four days intervened between the taking of the non-suit and the filing of the motion to set it aside and for new trial. Appellant states that the mandate from the appellate court was filed on April 1, 1908. (5) On April 28, 1908, appellant filed the case a second time in the circuit court, and, upon trial, obtained a verdict in the sum of one thousand five hundred dollars, but the trial court, on motion of defendant, set the same aside on the theory that the plaintiff's action was barred by the Statute of Limitations. The plaintiff perfected her appeal to this court, but, at the March term, 1910, thereof, dismissed her appeal. (6) At the February term, 1910, of the circuit court of Jasper county, plaintiff, by leave of court, filed an amended petition, first setting up substantially the foregoing, and then stating the facts relied on for her cause of action. Defendant demurred to this petition, assigning the following grounds: "First. Because said amended petition shows on its face that plaintiff's cause of action is barred by the Statute of Limitations. Second. Because said petition on its face shows that it was more than a year after plaintiff took a non-suit in said cause on the 25th day of April, 1906, before this suit was commenced. Third. Because the proceedings after non-suit of April 25, 1906, did not have the effect of keeping alive plaintiff's cause of action and give her the right to commence suit within one year after the judgment of the Kansas City Court of Appeals or the judgment entered in the circuit court upon the mandate from the Kansas City Court of Appeals."

Upon the trial court sustaining this demurrer, plaintiff perfected her appeal to this court.

The statute, section 2868, Revised Statutes 1899, as amended by Session Acts, 1905, page 137, is, in part, as follows: "Every action instituted by virtue of the preceding sections of this chapter shall be commenced within one year after the cause of action shall accrue: Provided that if any action shall have been commenced within the time prescribed in this section, and the plaintiff therein suffer a non-suit, . . .such plaintiff may commence a new action, from time to time, within one year after such non-suit suffered. . . ."

In this case the non-suit was suffered on April 25, 1906. The Kansas City Court of Appeals has already decided that as the motion to set the non-suit aside and grant a new trial was filed after four days had intervened, such motion should not have been considered. That is, the litigation had come to an...