Miller v. Crawford

• Decision Date: 04 April 1910
• Citation: 126 S.W. 984,140 Mo.App. 711
• Parties: FRANK H. MILLER, Appellant, v. M. E. CRAWFORD, Respondent
• Court: Kansas Court of Appeals

126 S.W. 984

140 Mo.App. 711

FRANK H. MILLER, Appellant, v. M. E. CRAWFORD, Respondent

Court of Appeals of Missouri, Kansas City

April 4, 1910

Appeal from Buchanan Circuit Court.--Hon. L. J. Eastin, Judge.

AFFIRMED.

Judgment affirmed.

C. C Crow for appellant.

The trial court is without power or authority to set aside a final judgment on default. It is in the discretion of the court to set aside default before final judgment, but the statute does not permit the filing of a motion after final judgment. R. S. 1889, sec. 770; Billingham v Miller, 115 Mo.App. 154; Burnes v. Burnes, 61 Mo.App. 612; Matthew v. Cook, 35 Mo.App. 286.

Mytton & Parkinson for respondent.

(1) All judgments, decrees and other orders, however conclusive, are under the control of the court which pronounces them during the term at which they are rendered or entered of record, and they may be set aside, vacated or annulled by that court during that term. Nelson v. Chiselin, 17 Mo.App 663; Woodward v. Woodward, 84 Mo.App. 328; Hesse v. Seip, 88 Mo.App. 66; Sinclair v. Lead & Zinc Co., 87 Mo.App. 268; Smith v. Perkins, 124 Mo. 50; Aull v. St. Louis Trust Co., 149 Mo. 1; Knupp v. Miller, 136 Mo. 256; Scott v. Smith, 133 Mo. 618; Casey v. Railroad, S.W. 562; Crawford v. Railroad, 171 Mo. 79. (2) A motion to set aside a judgment filed at the same term at which the judgment is rendered is the correct method of procedure whether the judgment be an interlocutory judgment by default or a final judgment by default. Knupp v. Miller, 133 Mo.App. 256; Curtiss v. Bell, 131 Mo.App. 245.

OPINION

ELLISON, J.

This action was instituted upon a promissory note, and judgment by default, and final, was rendered by the trial court. Afterwards, during the term, defendant filed motion to set aside the judgment and the court sustained it. Plaintiff thereupon appealed from that order.

The judgment, being upon a promissory note, was entered in the usual form, reciting the default and that the cause was thereupon submitted to the court by the plaintiff; that the court found the indebtedness existing in the amount of $ 468.68 and thereupon considered and adjudged that plaintiff recover that amount and have execution therefor.

Plaintiff contends that the judgment under consideration was a final judgment on a promissory note, and that, under the statute, a judgment by default cannot be set aside after final judgment. By section 769, Revised Statutes 1899, "an interlocutory judgment" by default is authorized where the defendant has failed to answer within proper time. And by section 770 "such judgment may, for good cause shown, be set aside at any time before the damages are assessed or final judgment rendered, upon such terms as shall be just." In giving effect to the latter section it has been decided that a judgment by default cannot be set aside after a final judgment has been rendered. [Billingham v. Miller, 115 Mo.App. 154, 89 S.W. 356; Matthews v. Cook, 35 Mo. 286; Burnes v. Burnes, 61 Mo.App. 612.] And those cases are cited by plaintiff in support of his view.

But do they apply? That statute and those decisions refer, not to a judgment by default merely, but to an interlocutory judgment by default. An interlocutory judgment has been called one which "is given in the middle of a cause, upon some plea, proceeding, or default, which is only intermediate, and does not finally determine or complete the suit." [3 Blackstone Com. 396.] Such judgments being intermediate, they precede the final judgment and presuppose something to follow before a final judgment is rendered. Such was the character of judgments in the cases cited.

But this case being on a note, the sum being liquidated by the instrument sued upon, final judgment is rendered, under our practice act, at the time the default is entered. There is therefore no interlocutory judgment in such instances and those cases do not support plaintiff's position.

But though the judgment was final and not interlocutory, it was yet one by default, and as such it could be set aside, on proper showing, at any time during the term of court at which it was rendered, or a term to which the application might be continued. [Harkness v. Jarvis, 182 Mo. 231, 81 S.W. 446.]

By reference to the cases cited in defendant's brief, including that just referred to, it will be seen that the trial court is invested with large discretion in determining a motion to set aside a default, especially in granting such motion. In the case at bar, we are satisfied, the circumstances considered, that there was no abuse of the court's powers.

Defendant has denied plaintiff's right to an appeal. His position is based on the assertion that no appeal will lie from an order setting aside a judgment by default, citing Breed v. Hobart, 187 Mo. 140, 86 S.W. 108, and Crossland v. Admire, 118 Mo. 87, 24 S.W. 154. In each of those cases the motion to set aside the default was made before the final judgment was entered. In the former there had not yet...