McCormick v. St. John

• Decision Date: 03 April 1941
• Citation: 149 S.W.2d 894,236 Mo.App. 72
• Parties: ZELLA McCORMICK, APPELLANT, v. ZACK ST. JOHN AND BLANCHE ST. JOHN AND OMER E. BROWN, RESPONDENTS
• Court: Missouri Court of Appeals

149 S.W.2d 894

236 Mo.App. 72

ZELLA McCORMICK, APPELLANT, v. ZACK ST. JOHN AND BLANCHE ST. JOHN AND OMER E. BROWN, RESPONDENTS

Court of Appeals of Missouri, Springfield

April 3, 1941

Appeal from the Circuit Court of Christian County.--Hon. Robert L Gideon, Judge.

APPEAL DISMISSED AND CAUSE REMANDED.

Appeal dismissed cause remanded.

G. Purd Hays for appellants.

(1) Petition, answer and judgment were all regular and the bond the instrument sued upon, was introduced in evidence and the judgment as rendered was a final judgment. Can be no default judgment when based on written instrument as in this case. Reed Brothers v. Nicholsen et al., 158 Mo. 624; Halsey v. Meinrath, 54 Mo.App. 335, 343; Meyerhardt v. Fredman, 131 S.W.2d 916. (2) The judgment and finding of the Hon. Joseph C. Crain made and rendered the judgment of Judge Robert L. Gideon on May 27 1938, as set out in full in this record, a final judgment. Sec. 1070, R. S. 1929, Ann., page 1370; Irwin v Burgan, 28 S.W.2d 1017; Costello v. Kansas City, 232 S.W. 165. (3) Judges can't alternate as Regular Judge Gideon tried to do in this case. Lacy v. Barrett, 75 Mo. 469; Ramey v. Packing Co., 132 Mo.App. 324; State v. Moberly, 121 Mo. 604; State ex rel. Renfro v. Wear, 129 Mo. 619; Farley v. Welch, 237 Mo. 128; Hengal v. Leach, 226 S.W. 883. (4) The judgment in this case was sold by plaintiff Zella McCormick, to T. B. Chaffin and the sale of said judgment is attached to and on the margin of the record as required by law and imparts notice to all parties, and before the court made any orders or judgments in said cause affecting the interests of T. B. Chaffin in said judgment the said T. B. Chaffin should have been notified, and the judgment of Judge Gideon undertaking to set aside the judgment in this cause is void. Section 1136, R. S. 1929, Ann., page 1411.

Omer E. Brown and W. L. Vandeventer for respondents.

(1) When a special judge is elected for the term or part of a term because of the inability of the regular judge to attend, the regular judge is not disqualified from resuming his duties when he is able and the fact that the special judge makes some order in a case does not require him to continue in the case to the exclusion of the regular judge. Const., Mo., art. 6, sec. 29; Secs. 1942, 1934 and 1947, R. S. Mo. 1929; Cook v. Cook, 228 Mo.App. 478, 68 S.W.2d 900; State ex rel. v. Fidelity & Deposit Co., 136 Mo.App. 330, 117 S.W. 618; State ex rel. Dunlap v. Higbee, 328 Mo. 1066, 43 S.W.2d 825; 33 Corpus Juris., secs. 226-29, pp. 1034-1035; Berry et al. v. Leslie, 131 Mo.App. 236, 110 S.W. 685. (2) The court has jurisdiction to set aside a judgment, or modify it, at the same term of court on its own motion and a motion by the unsuccessful party may merely furnish the suggestion which operates as an incentive to such action. Reid v. Moulton (Mo.), 210 S.W. 34; In re Henry County Mutual Burial Association, 229 Mo.App. 300, 77 S.W.2d 124; Bruegge v. State Bank of Welston, 74 S.W.2d 835.

BLAIR, P. J. Smith and Fulbright, JJ., concur.

OPINION

BLAIR, P. J.

--This is a suit upon an attachment bond. On January 8, 1938, appellant filed her petition alleging that respondent Zack St. John brought a suit against plaintiff below for a grocery bill and in aid thereof said Zack St. John filed an affidavit of attachment and gave bond in said attachment suit for $ 300, signed by said Zack St. John and respondents Blanche St. John and Omer E. Brown, and attached personal property of plaintiff below (appellant here). Plaintiff made said attachment bond, or a copy thereof, a part of said petition.

Said petition further alleged that said personal property was turned over to persons other than plaintiff and was eventually lost to plaintiff below; said petition further alleged that plaintiff below won on both the merits and said attachment and that said attachment was dissolved; said petition further alleged that the property said to have been lost by plaintiff was worth about $ 500. Plaintiff asked $ 750 in damages in said petition for such alleged wrongful attachment.

For answer defendant below filed a general denial and alleged that defendant therein, Zack St. John, filed an amended petition in the suit for grocery bill in four counts and filed an amended attachment bond therein; that said Zack St. John had judgment in Greene County, Missouri, upon the 2nd, 3rd and 4th counts of said amended petition and that the amended attachment affidavit was sustained and the attachment was not dissolved, and that such judgment on the merits in favor of said Zack St. John became final.

It seems that defendants below were not present when this case was set for trial and on May 27, 1938, Judge Robert L. Gideon, the regular judge of said Christian County Circuit Court, rendered judgment and found, ordered and adjudged that plaintiff (appellant here) recover of and from all defendants (respondents here) the sum of $ 300 for loss of property and from defendants (respondents) Zack St. John and Blanche St. John the further sum of $ 100 for Zella McCormick for expenses of attending court; $ 50 for a cow killed while in possession of plaintiff in said grocery bill suit and for the further sum of $ 100 paid to T. R. Welch, out of the proceeds of the sale of the property attached, and for costs and ordered execution.

On June 4, 1938, defendants below (respondents here) filed a motion to set such judgment aside, alleging various reasons therefor. Said motion was not thereafter finally acted upon by Judge GIDEON; but the regular May Term of the Christian County Circuit Court was later adjourned by him until July 5, 1938. On said July 5, 1938, Judge GIDEON, the regular judge of said court, was unable to be present and hold said Christian County Circuit Court and the bar of said Court elected the Honorable Joseph C. Crain as special judge to try the causes continued from the regular term to said adjourned term.

On June 15, 1938, as appears from the appellee's abstract, the Court (the record does not show which judge) made the following order:

"Motion to strike out motion to set aside judgment filed and overruled.

"Now on this day comes the plaintiff by attorney in the above entitled cause and files herein her motion to strike out the motion of the defendant to set aside the judgment herein and the court after having seen, heard and fully understood said motion doth overrule the same."

And on the same day made the following order:

"Now on this day, the Court, after having seen, heard and fully understood defendants' motion filed herein, heretofore, to set aside the Judgment rendered herein against the defendants, doth sustain the same."

On the same day the Court made the following:

"Motion for new trial filed.

"Now on this day comes the Plaintiff, by Attorney, and files herein her motion for a new trial."

On July 5, 1938, Judge CRAIN made the following order:

"Now at this day, the court, the Honorable Joseph C. Crain, having been duly elected as Special Judge, by the Christian County Bar, after having seen, heard and fully understood Plaintiff's motion for a rehearing filed herein, heretofore, doth sustain the same, on the ground that Defendant's motion to set aside Plaintiff's Judgment is not sufficient as a motion for a new trial or as a petition for review. "

And on the same day Judge CRAIN set this case for July 11, 1938.

It is appellant's contention (appellant's abstract, page 18) that exclusive jurisdiction in this particular case was conferred by agreement of counsel upon Judge CRAIN, but the record entirely fails to show this.

On July 5, 1938, Judge CRAIN made and entered the following order:

"Now at this day, it is the order of the Court, Joseph C. Crain that the above entitled cause be and is hereby set for rehearing for July 11, 1938, on Defendant's motion to set aside judgment."

This order does not show anything more than that a rehearing in this case was set for July 11, 1938. It shows no agreement that particular jurisdiction in this case should be conferred upon Judge CRAIN and we do not find any such particular jurisdiction of this case was ever conferred upon Judge CRAIN. The statement of the appellant above referred to is not borne out by the record before us, and from the additional abstract of respondents we learn that Judge CRAIN disposed of other cases during his incumbency as special judge.

On July 11, 1938, Judge GIDEON, being unable to be present and preside, Honorable Charles F. Boyd was duly elected special judge of said court and said Judge Charles F. Boyd, over the objection of appellant (as appellant contends and as again not shown by the record), reset this cause for rehearing on August 15, 1938, as appears by the...