Kallash v. Kuelker

• Decision Date: 13 June 1961
• Docket Number: No. 30705,30705
• Citation: Kallash v. Kuelker, 347 S.W.2d 467 (Mo. App. 1961)
• Parties: Alma Marie KALLASH, (Plaintiff) Appellant, v. Joseph E. KUELKER, (Defendant) Respondent.
• Court: Missouri Court of Appeals

Page 467

347 S.W.2d 467

Alma Marie KALLASH, (Plaintiff) Appellant, v.Joseph E. KUELKER, (Defendant) Respondent.

No. 30705.

St. Louis Court of Appeals, Missouri.

June 13, 1961.

Motion for Rehearing or for Transfer to Supreme Court Denied

and Opinion Modified July 13, 1961.

William L. Hungate, Peter J. Grewach, Hungate & Grewach, Troy, for appellant.

George E. Heneghan, Heneghan, Roberts & Cole, St. Louis, for respondent.

DEW, Commissioner.

An interlocutory default judgment was rendered for the plaintiff and against the defendant, and later, upon a hearing, damages were assessed and a judgment by default in the sum of $12,500 was rendered.Within thirty days thereafter, upon the filing of a motion by the defendant therefor, the court, upon a hearing, set aside the default judgment, including the interlocutory order and inquiry.Plaintiff then filed a motion to set aside the order vacating the judgment and the interlocutory proceedings, which motion was denied, from which denial the plaintiff served notice of appeal and pursues that remedy in the present proceedings in this court.

Stating more particularly this baffling network of court procedure, a petition was filed by the plaintiff to recover damages claimed to have been sustained by her while a passenger with her husband in an automobile, through the alleged negligence of defendant.Personal service having been had on the defendant and no pleading having been filed by him when due, the court, upon plaintiff's request, granted an order of default and inquiry and entered an interlocutory judgment against the defendant on May 10, 1960.On May 25, 1960, the defendant not appearing and being still in default, the court, upon a further hearing, assessed the plaintiff's damages and entered a default judgment against defendant in the sum of $12,500.

On June 21, 1960, the defendant filed a motion for 'a new trial' or for an order vacating the default judgment, including the interlocutory judgment by default and inquiry entered May 10, 1960, the motion alleging reasonable diligence on defendant's part and a meritorious defense.The motion also prayed for leave to the defendant to plead to the petition.

At the hearing conducted by the court on June 24, 1960, on defendant's motion to vacate the default judgment, there was substantial evidence tending to prove that a letter was sent by defendant's insurer transmitting to its attorney who was also counsel for defendant, information regarding the plaintiff's action and its defense; that the letter was addressed personally to the counsel; that, through inadvertence on his part or some employee in his office this letter was mislaid or misfiled; that the counsel had represented the insurance company for many years and had established a routine of procedure upon receiving from the company any such letters transmitting cases for his attention; that due to a great many income tax matters then pending in the counsel's office, the communication regarding this case may have been attached to some such tax file or other folder; that it was the policy in such matters for counsel to acknowledge receipt of such communications and files, then to have one secretary make a folder and docket sheet on the matter and, as a double check, to pass the same on to a second secretary for further attention; that if counsel formally acknowledged receipt of the letter from the insurance company, he had no recollection of it; that for some reason, the second secretary had not received the file and the matter was not brought to counsel's attention until June 17, 1960.

The evidence further tended to show that on June 17, 1960, the insurer's original letter to counsel for defendant, with its enclosures, was found among his files, having been mislaid or misfiled, and he then learned of the suit, the judgment and the default proceedings.Because of the disposition we must make of this appeal, a further recitation of the evidence is not essential.

After hearing the above evidence, the court, citing and reading CivilRule 75.01 V.A.M.R., authorizing a trial court of its own volition, within 30 days after the rendition of a judgment, to reopen or to vacate such judgment, ordered the interlocutory default decree of May 10, 1960, and the default judgment of May 25, 1960, assessing damages, to be vacated and for naught held, assigning as the reason for such order that additional evidence was desired on the issue of liability and injuries.Leave was given to defendant to plead to the petition and defendant filed his answer on June 30, 1960.

On July 8, 1960, plaintiff filed a motion to set aside the order of June 24, 1960, vacating the default judgment of May 25, 1960, on the ground that such order was an abuse of the court's discretion and that no showing had been made of the defendant's diligence.This motion of the plaintiff was denied, the date of such denial being recorded as 'July 16, 1960 or July 18, 1960.'

Thereafter, on July 25, 1960, plaintiff filed a notice of appeal as follows: 'Notice is hereby given that Alma Marie Kallash, Plaintiff above-named, hereby appeals to the St. Louis Court of Appeals from Order entered July 16, 1960 or July 18, 1960, denying Plaintiff's Motion To Set AsideThe Court's Order Vacating The Judgment heretofore entered in this action.Dated July 22, 1960.'

The defendant has filed a motion in this court to dismiss this appeal, to which we must first direct our attention.The grounds assigned are various imperfections of the plaintiff's brief and a contention that Section 512.020 RSMo 1959, V.A.M.S., specifying the orders and judgments from which an appeal will lie, contains noprovisions authorizing an appeal from an order vacating a default judgment.Since the right of appeal is statutory, and if this appeal is not authorized by the statute, it is mandatory that the appeal be dismissed.Plaintiff has not favored us with any suggestions or citations of law on the subject of the motion to dimiss her appeal, but has confined the arguments in her brief to the merits of the order vacating the default judgment and interlocutory proceedings.

The nature and scope of this appeal must first be analyzed.Literally, according to the notice of appeal, the appeal is taken from the order made 'July 16, 1960 or July 18, 1960,' denying plaintiff's motion to set aside the order of June 24, 1960, 'vacating the judgment heretofore entered in this action.'The 'judgment heretofore entered in this action' must be considered to be the default judgment entered May 25, 1960, assessing the damages.That judgment, subject only to the control over it by the court for 30 days (Civil Rule 75.01), was the only final judgment then entered in the cause.'A [final] judgment is the final determination of the rights of the parties,' Civil Rule 74.01,Section 511.020 RSMo 1959, V.A.M.S.Thus we have an order vacating a default judgment against defendant, an order denying plaintiff's motion to set aside the vacating order, and a notice of an appeal by the plaintiff from such denial.

Of appeals taken in the above and like form, the Supreme Court has placed its construction in Weller v. Hayes Truck Lines, 355 Mo. 695, 197 S.W.2d 657, loc. cit. 660.In that case a notice of appeal from an order overruling a motion for a new trial after judgment, was held an attempt in good faith to appeal from the judgment itself and was ruled a sufficient notice therefor.The court said on page 660 of 197 S.W.2d: 'Appellant was seeking relief from the judgment that aggrieved him.To hold otherwise we would have to say appellant was knowingly attempting to do a futile thing.Appellant in good faith attempted to comply with the provisions governing the notice of appeal by referring to the action which made the judgment final.'And again the court said: 'Therefore it is obvious that appellant, while literally saying that he was appealing from the order overruling the motion for new trial, sought to appeal from the final judgment itself, the only appealable judgment in the case.'We deem the principle in that case to apply to the instant appeal and we rule that this is an attempt in good faith to appeal from the order of June 24, 1960, setting aside the default judgment.In fact, the parties here so treat this appeal, and every point raised by the plaintiff in her brief is an attack on the propriety of the order setting aside the default judgment and interlocutory default decree.Note, also Walker v. Thompson, Mo.Sup., 338 S.W.2d 114;Terrell v. Missouri-Kansas-Texas R. Co., Mo.Sup., 303 S.W.2d 641;City of St. Louis v. Mueller, Mo.App., 313 S.W.2d 189;Boenzle v. U.S. Fidelity & Guaranty Co., Mo.App., 258 S.W.2d 938.

The question next to consider is whether the order of June 24, 1960, setting aside...