Montz v. Moran

• Citation: 172 S.W. 613
• Decision Date: 04 January 1915
• Docket Number: No. 16950.,16950.
• Parties: MONTZ v. MORAN.
• Court: United States State Supreme Court of Missouri

172 S.W. 613

MONTZ v. MORAN.

No. 16950.

Supreme Court of Missouri, Division No. 2.

January 4, 1915.

1. JUDGMENT (§ 153) — VACATION — MOTION.

Under Rev. St. 1909, § 2094, defendant should at the term it is rendered move to set aside an interlocutory judgment rendered against him for his failure to answer in time.

2. APPEAL AND ERROR (§ 544) — RECORD.

Where defendant's motions were not preserved in any bill of exceptions, they must be considered as named by defendant.

3. APPEAL AND ERROR (§ 1074) — REVIEW — HARMLESS ERROR.

Where final judgment was properly rendered at the September term and at the succeeding term it was vacated, final judgment being subsequently rendered on an interlocutory judgment then entered nunc pro tunc as of the September term, defendant whose motion for new trial was overruled cannot complain; for a judgment will not, under Rev. St. 1909, § 2082, be reversed for nonprejudicial errors.

4. APPEAL AND ERROR (§ 1073) — HARMLESS ERROR — FORM OF JUDGMENT.

Where judgment against defendant was warranted the bare form of the judgment whether final or interlocutory does not prejudice him.

5. JUDGMENT (§ 153) — DEFAULTS — VACATION.

Where final judgment was improperly rendered upon defendant's failure to answer, the judgment may at the succeeding term be set aside upon motion then filed.

6. JUDGMENT (§ 326) — CORRECTION — ORDERS NUNC PRO TUNC.

Where a judgment rendered upon defendant's failure to answer was improper, it may, where it contains data sufficient for the rendition of a proper judgment, be corrected nunc pro tunc.

7. EVIDENCE (§ 12) — JUDICIAL NOTICE.

The Supreme Court will take judicial notice of the population of the several counties.

8. JUDGMENT (§ 119) — DEFAULTS — NATURE OF JUDGMENT.

Rev. St. 1909, § 1799, provides that, in all counties having 40,000 inhabitants or less, the defendant shall demur to or answer the petition on or before the term in which he is required to appear, unless further time is given, and, in all cases were defendant has been served 30 days before the first day of the term, he shall demur to or answer the petition on or before the first day of the term. Section 2093 provides that, if defendant shall fail to file his answer within the time prescribed by law, an interlocutory judgment shall be given against him by default, while section 2098 provides that, in case of an interlocutory judgment by default nil dicit, the court shall assess the damages and final judgment shall be given thereon. Held, that in an action begun in a county having 40,000 inhabitants or less, where defendant was served 30 days before the term, final judgment might be rendered upon his failure to answer.

9. APPEAL AND ERROR (§ 1072) — REVIEW — HARMLESS ERROR.

At the September term, the court rendered final judgment on defendant's failure to answer. Defendant moved for new trial. At the January term, the final judgment was vacated, and an interlocutory judgment rendered nunc pro tunc as of the September term; the motion for new trial being denied. Defendant did not ask to plead, or show good cause why the interlocutory judgment should be vacated. Held, that any error of the court denying a new trial should be disregarded, under Rev. St. 1909, § 2082, prohibiting reversals for immaterial errors because defendant made no showing to relieve himself of the judgment.

10. APPEAL AND ERROR (§ 706) — RECORD — QUESTIONS PRESENTED.

Where not preserved in the record, the question of the overruling of defendant's motion for new trial cannot be reviewed.

Appeal from Circuit Court, Clinton County; A. D. Burnes, Judge.

Action by Joseph Montz against Michael G. Moran. From a judgment for plaintiff, defendant appeals. Affirmed.

Plaintiff sued defendant in equity to cancel a deed. Defendant took leave to plead at the April term, 1911; but, failing to do so, a judgment by default, upon its face final, was rendered against him at the September term, 1911, the same being the term at which the default was entered. [To distinguish it we will refer to this as the "September judgment."] At this September term and within four days after the rendition of the judgment aforesaid, defendant came in and filed a motion for a new trial and a motion in arrest of judgment. The case was then continued, specifically because of the pendency of said motion for a new trial, with the motion in arrest also pending, and no further action was taken till the January term, 1912, at which time the court took up the defendant's motion for a new trial and, in the presence of defendant and his counsel, set aside the final judgment rendered by the court at the September term, upon the ground inferably (though the reason is not clear) that a final judgment, rendered at the same term at which the default was noted, was in this kind of case prematurely entered. Thereupon the court overruled the defendant's said motions for a new trial and in arrest, and thereafter, at the said January term, entered an interlocutory judgment by default, nunc pro tunc, as of the September term, 1911. Following all this and at the same term, the court heard evidence in the case on the part of plaintiff, and entered judgment (which we may, to distinguish the two judgments and for brevity, call the "January judgment") for plaintiff, decreeing to him the relief for which he prayed. Defendant though presumptively still present, both in person and by counsel, asked no leave to plead, or otherwise raised his voice after the September judgment was set aside and before the January judgment was rendered, but throughout all these proceedings stood mute. Defendant thereupon appealed, taking time till the next term of the court nisi to file his bill of exceptions, but neglecting so to do in the time given to him, or at any other time, is here now solely upon a bare and most meager record proper.

E. M. Swartz, of St. Joseph, for appellant. William Fitch, of Jefferson City, for respondent.

FARIS, J. (after stating the facts as above).

After the court nisi had set aside the September judgment and overruled defendant's said motions and entered the nunc pro tunc order of default, as also the January judgment, he took this appeal, without having in the interim filed, or asked leave to file, any pleading, or to be heard in any way, and without filing any new motion for a new trial or any other motion of any kind.

Nevertheless, defendant contends that the bare record of the two judgments, which is practically all there is before us, shows that the trial court entered a final judgment by default at the return term, without the antecedent formality of noting a default and entering thereon an interlocutory decree. He further contends that the final judgment entered at the January term, 1912, is a nunc pro tunc final judgment entered in January as of and for the September term, 1911, and that these things are so fatally erroneous as to constitute reversible error upon the record, without more.

We do not so read the orders or the judgment entered by the court at the said January term. We think, on the contrary, that they fairly, but concededly not clearly, show that the learned trial judge, deeming the final judgment "which was written up" and "spread upon the records" by the clerk at the return term in September erroneous in that it was premature, set aside the said final judgment and noted a default and entered an interlocutory decree, nunc pro tunc as of the September term, 1911, and thereupon as the record before us, as we read it, solemnly recites, proceeded to hear the plaintiff's evidence and then entered the final January judgment here appealed from.

Defendant's plain legal duty was to file at the September term his motion to set aside the default judgment taken against him, as the statute provides. Section 2094, R. S. 1909. Instead of this he filed untimely (if we test the matter by his own position), and therefore useless, motions for a new trial and in arrest. We are, of course, compelled to name these motions as the defendant names them; since they are not before us.

It was upon defendant's motion for a new trial that the case was continued. This motion had the effect of justifying in law the continuance of a case which otherwise (a final, instead of an interlocutory, judgment having been rendered) would have been utterly at an end when the September term adjourned. The said motion of defendant suspended or held up the finality of the judgment till the disposition of the motion (McGurry v. Wall, 122 Mo. 614, 27 S. W. 327; Walter v. Scofield, 167 Mo. 538, 67 S. W. 276; Guinan v. Donnell, 201 Mo. 173, 98 S. W. 478), and on such a state of facts a setting aside of the September judgment...