Korn v. Ray

• Decision Date: 19 November 1968
• Docket Number: No. 32993,32993
• Citation: 434 S.W.2d 798
• Parties: Marguerite KORN, Plaintiff-Respondent, v. Earl RAY, etc., et al., Defendants, Model Beautician's Supply Company, Inc., Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 798

434 S.W.2d 798

Marguerite KORN, Plaintiff-Respondent, v. Earl RAY, etc., et al., Defendants Model Beautician's Supply Company, Inc., Defendant-Appellant.

No. 32993.

St. Louis Court of Appeals, Missouri.

Nov. 19, 1968.

J. Raymond Dyer, Harry J. Stadin, St. Louis, for defendant-appellant.

Stemmler & Stemmler, St. Louis, for plaintiff-respondent.

WILLIAM H. BILLINGS, Special Judge.

Defendant Model Beautician's Supply Company, Inc., appellant and called Model herein, has appealed from the action of the trial court overruling its motion to vacate and set aside a default judgment entered against Model and a co-defendant in a claim for damages. The judgment was entered February 1, 1967, and no motion for new trial or appeal was filed or taken by either of the defendants. On April 17, 1967, seventy-five days after judgment, Model filed its motion to vacate and set aside the judgment. Following the overruling of the motion on June 6, 1967, Model filed a 'motion for new trial' which was overruled on June 29, 1967. This appeal followed.

In this court Model contends that because of irregularities patent on the face of the record the trial court had the required jurisdiction to set aside and vacate the February 1 judgment under Civil Rule 74.32, V.A.M.R., and § 511.250, RSMo 1959, V.A.M.S., and erred in failing to grant Model the requested relief. Further, that because of these irregularities Civil Rules 73.01(c) and 75.01, V.A.M.R., stand as no bar to setting aside the judgment. ¹ Civil Rule 74.32, supra, is as follows:

'Judgments in any court of record shall not be set aside for irregularity, on motion, unless such motion be made within three years after the rendition thereof.'

This Rule follows § 511.250, supra, but substitutes 'after the rendition thereof' for the statutory language 'after the term at which such judgment was rendered'.

Model's claims of patent irregularities are as follows: first, plaintiff's petition was in three counts and the judgment is silent as to which count was the basis for the judgment; second, plaintiff prayed for 'damages' and not for judgment in one of the counts; third, there was no service of a valid summons on Model; and fourth, the record did not show compliance with Rule 14A of the Circuit Court that provides the clerk of that court notify the defendant, or defendant's attorney of record, by mail of the trial date at least five days prior thereto.

In view of the foregoing contentions a chronological summary of the events and proceedings prior to judgment is in order. On June 30, 1966, plaintiff went to Ray's Beauty Shop for her yearly 'permanent' and 'rinse' to her hair. Following certain preliminary steps familiar to the fairer sex a new rinse called 'Snow Silver for Bleached Hair' was applied to plaintiff's hair. This rinse was manufactured by Cosmair, Inc., and distributed by Model. After plaintiff's hair was dried brushing commenced with the discovery that portions of plaintiff's hair had been reduced in length to one-half inch. Plaintiff's petition sets forth what might by aptly described as the long and short of her situation thusly: 'plaintiff's hair broke off, splintered, fractured, frayed and fell out--and necessitating that plaintiff get a wig'.

July 26, 1966, plaintiff's attorneys sent Model a letter by certified mail and the requested return receipt was signed by 'Lester Inger, Registered Agent'. This letter advised of plaintiff's claim arising from the application of the rinse, requested Model or its insurance carrier to contact plaintiff's attorneys, demanded the return of the unused portion of the rinse together with a lock of plaintiff's hair, and requested the results of certain tests. Under date of July 29 Model advised plaintiff's attorneys that the matter should be taken up with Cosmair and added that Cosmair's legal department 'will no doubt then get in touch with you'.

Plaintiff's petition was filed December 1, 1966, in three counts. Count I was directed against Earl Ray, d/b/a Ray's Beauty Shop for negligence. Count II, in the alternative, was against Ray, Model and Cosmair and stated a products liability claim. In the alternative, Count III named all three defendants and alleged improper labeling of the rinse and failure to test it before application to plaintiff. Summons was issued and directed to Model on December 2, 1966, and the sheriff's return recites service on December 9, 1966, on 'Lester Inger, Registered Agent, of the within named Corporation, Model Beautician's Supply Co., Inc.'

No pleadings were filed by any of the defendants and on January 11, 1967, the court entered the following order:

'Default and Inquiry granted as to defendants Model Beauticians Supply Co., Inc. and Earl Ray d/b/a etc. Upon oral application of plaintiff, cause set for trial Feb. 1, 1967 at 9:30 A.M.'

On February 1, 1967, the record shows the plaintiff filed a memorandum dismissing without prejudice her cause of action as to defendant Cosmair, Inc.; further, that ther were no appearances for defendants Model and Ray. The plaintiff presented her evidence to the court, without a jury, and the following judgment was entered of record, to-wit:

'WHEREFORE, it is ordered and adjudged by the Court that said plaintiff, Marguerite Korn, have and recover of said defendants the sum of Two Thousand Five Hundred ($2,500.00) Dollars, together with interest thereon from this date at the rate of six per centum per annum and also the costs herein incurred.'

On April 17, 1967, counsel entered appearance as attorney for Model and on the same date filed Model's motion to set aside and vacate the judgment. Plaintiff on April 20th countered with a motion to strike Model's motion contending the trial court was without power, authority or jurisdiction to set aside and vacate the judgment. Additional counsel for Model entered his appearance as attorney on April 21. On June 6, 1967, the court entered its order overruling Model's motion. This action of the court was followed by the filing on June 20th 'Defendant Model's Motion for A New Trial (Rehearing)' which was overruled on June 29, 1967.

Before considering the specific assignments of irregularities of Model we deem it pertinent to first examine the type of irregularity which may be reached under Civil Rule 74.32, supra, and § 511.250, supra, by way of a motion to set aside and vacate an otherwise final judgment. The irregularity must be patent on the record, and not one depending on proof dehors the record. Casper v. Lee, 362 Mo. 927, 245 S.W.2d 132. We recognize that the latter type of irregularity can be shown by way of a motion in the nature of a writ of error coram nobis. Casper v. Lee, supra; Rubbelke v. Aebli, Mo., 340 S.W.2d 747. And we are aware that in certain circumstances a motion to vacate a judgment may operate as a substitute for a writ of error coram nobis if the facts and circumstances justify it. Rubbelke v. Aebli, supra. However, since Model has expressly limited its appeal to irregularities patent on the face of the record and relies solely upon Civil Rule 74.32, supra, and § 511.250, supra, for relief from the February judgment, we will likewise limit our opinion accordingly.

The irregularity must be such as to be a want of adherence to some prescribed rule or mode of proceeding and consists either in omitting to do something that is necessary for the due and orderly conduct of a suit or doing it at an unreasonable time or in an improper manner. Ruckman v. Ruckman, Mo.App., 337 S.W.2d 100; Murray v. United Zinc Smelting Corp., Mo., 263 S.W.2d 351; Robb v. Casteel, Mo.App., 340 S.W.2d 180; Casper v. Lee, supra. However, where the proceedings are regular, however erroneous, the power of the trial court to interfere ceases thirty days after the judgment was rendered absent a timely after judgment motion. As noted in Robb v. Casteel, supra (l.c. 184):

'* * * A motion to set aside a judgment for irregularity under Section 511.250 RSMo 1949, V.A.M.S., is not effective to review or to correct claimed judicial errors committed in the rendition of a judgment * * *. The motion does not reach ordinary judicial errors in a judgment rendered in accordance with established rules of procedure. * * *'

This rule of law is applicable to judgments by default. Jeffrey v. Kelly, Mo.App., 146 S.W.2d 850; Buchholz v. Manzella, Mo.App., 158 S.W.2d 200. Thus, where a defendant was personally served but failed to appear in reliance upon the promise of another to defend, the statute had no application. Bruner v. Ingersoll-Rand Drill Co., Mo.App., 233 S.W. 256. In Edson v. Fahy, Mo., 330 S.W.2d 854, the court again pointed out that a motion such as Model's cannot be used to test the sufficiency of the evidence or to review trial errors. And Rubbelke v. Aebli, supra, restates the proposition that a motion such as now before us cannot be employed as a substitute for an appeal. With the foregoing principles before us, we turn now to Model's assignments of irregularities.

The record confirms Model's statement that plaintiff's petition was in three counts and that the judgment failed to specify which count was the basis for the judgment against Model and its co-defendant. We do not agree with Model's assertion that this demonstrates 'a want of adherence to the prescribed mode of procedure, and consisted of omitting to do something necessary for the due and orderly conduct of the suit herein. The judgment herein should have conformed to the pleadings'. The cases cited by Model ² do not support this contention although they do recognize and follow the applicable principles governing a motion under the rule and statute.

Here plaintiff had a single cause of action which she pleaded against Model and its co-defendant in Counts II and III. This court ruled in American Displays v. E. T. Swiney Motors, Mo.App., 240 S.W.2d 732, that when a plaintiff has but a single cause of action which may be stated in different ways so as to...