Moore v. Baker

Decision Date22 December 1998
Docket NumberNo. WD,WD
Citation982 S.W.2d 286
PartiesPeggy E. MOORE, Respondent, v. Josh N. BAKER, Appellant. 55505.
CourtMissouri Court of Appeals

John Franke, Kansas City, for appellant.

Arthur Kase, Kansas City, for respondent.

Before PAUL M. SPINDEN, Presiding Judge, ROBERT G. ULRICH, Judge, and EDWIN H. SMITH, Judge.

SPINDEN, Presiding Judge.

Josh N. Baker appeals the circuit court's denial of his motion to set aside a default judgment and the denial of his motion for reconsideration of the denial of his motion to set aside the default judgment. He contends that the circuit court did not have personal jurisdiction over him because he did not receive service of process. The circuit court erred in denying Baker's motion without an evidentiary hearing, so we remand the case to the circuit court for further proceedings.

On August 11, 1997, Peggy E. Moore sued Baker for damages resulting from an automobile collision. According to a deputy sheriff's return, the deputy served Baker on August 24, 1997, at a fraternity house near the University of Missouri-Kansas City. The return said, "I hereby certify that I have served the within [sic] summons in Jackson County, Missouri on 8-24, 1997, by delivering a copy of the summons and a copy of the petition to the within [sic] named defendant, Josh N. Baker at 5229 Rockhill Rd. Kansas City, MO[ .]"

On September 8, 1997, the circuit court convened a hearing. Baker did not appear, and the circuit court entered default judgment for Moore.

Notwithstanding the default judgment, Baker filed an answer to Moore's petition on December 10, 1997. 1 Baker's answer did not aver lack of service of process.

Baker then filed, on January 8, 1998, a motion to set aside the default judgment in which he alleged that service of process was insufficient. He averred that he did not reside at the fraternity house and did not have actual or constructive notice of the September 8, 1997, hearing. The circuit court overruled the motion to set aside on January 12, 1998, without a hearing.

On January 23, 1998, Baker asked the circuit court to reconsider its denial of his motion to set aside. He averred that the service of process was improper because it was not personally served on him or left at his dwelling house or usual place of abode. Attached to the motion was Baker's affidavit which said that Baker did not live at the fraternity house when the deputy served the process--that he had moved to Lawrence, Kansas, on August 16, 1997. He also said that, during the Summer 1997, his permanent residence was at his parents' house in Kansas City. He also said that he received no notice of the lawsuit or the September 8 hearing. The court denied the motion to reconsider on February 19, 1998, without a hearing. Baker filed his appeal on February 24, 1998.

Moore contends that we should dismiss this appeal on the ground that Baker did not file his notice of appeal on time, depriving us of jurisdiction. We disagree.

A court's judgment to grant or to deny a motion to set aside a default judgment is independent of the underlying judgment. Kueper v. Murphy Distributing, 834 S.W.2d 875, 878 (Mo.App.1992); Clark v. Brown, 794 S.W.2d 254, 256 (Mo.App.1990). 2 The circuit court retains control of its judgment for 30 days after denying a motion to set aside, and the judgment becomes final when the 30 days expire. Kueper, 834 S.W.2d at 878. A party then has 10 days to appeal the judgment. Rule 81.04(a); Kueper, 834 S.W.2d at 878.

Baker's motion for reconsideration, however, tolled the time for his appeal. Generally, a motion for reconsideration has no legal effect because neither the Supreme Court nor the General Assembly have authorized motions for reconsideration. Koerber v. Alendo Building Company, 846 S.W.2d 729, 730 (Mo.App.1992). Under certain circumstances, however, and in the interest of facilitating substantive review of an appeal, we treat a motion for reconsideration as a motion for new trial if the motion is timely filed. Id.

"A trial is a judicial examination and determination of issues between the parties to an action, whether they be issues of law or fact, before a court that has jurisdiction." Taylor v. United Parcel Service, Inc., 854 S.W.2d 390, 392 (Mo. banc 1993). Because a motion to set aside a default is an independent action and because the circuit court's denial of Baker's motion to set aside involved a judicial examination of the issues, we treat Baker's motion for reconsideration as a motion for new trial. Because Baker filed his motion for reconsideration within the time allowed for filing a motion for new trial and because Baker filed his notice of appeal within 10 days of the denial of the motion for reconsideration, his appeal before this court was timely. See generally Jacobs v. Howard, 801 S.W.2d 744 (Mo.App.1990). We, therefore, have jurisdiction over his appeal.

That brings us to the merit of Baker's appeal--that the circuit court did not have jurisdiction to enter its judgment and, therefore, abused its discretion in refusing to set aside its judgment. This issue is premature; we do not have a factual basis for deciding it. The reason we lack a sufficient record is the circuit court's failure to convene an evidentiary hearing to consider Baker's motion. This failure was error, and we remand for the circuit court to correct its error.

Rule 74.05(d) provides that a circuit court can set aside...

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14 cases
  • McElroy v. Eagle Star Group, Inc.
    • United States
    • Missouri Court of Appeals
    • January 25, 2005
    ...set aside, and the judgment becomes final when the 30 days expire. A party then has 10 days to appeal the judgment." Moore v. Baker, 982 S.W.2d 286, 288 (Mo.App. W.D.1998) (internal citations omitted); Rule 81.05(a)(2)(B); Rule 81.04(a). As noted supra, the trial court entered its "judgment......
  • In re Marriage of Coonts, 27052.
    • United States
    • Missouri Court of Appeals
    • May 5, 2006
    ...judgment is an authorized after trial motion, it was stated in Klaus I that "[s]imilarly, the Western District in Moore v. Baker, 982 S.W.2d 286, 288 (Mo.App. W.D.1998), found that a motion to reconsider the setting aside of a default judgment was treated as a motion for new trial because i......
  • Klaus v. Shelby
    • United States
    • Missouri Court of Appeals
    • November 9, 1999
    ...the trial court's control over the judgment from thirty days to ninety days. Similarly, the Western District in Moore v. Baker, 982 S.W.2d 286, 288 (Mo. App. W.D. 1998), found that a motion to reconsider the setting aside of a default judgment was treated as a motion for new trial because i......
  • Hagan v. Buchanan
    • United States
    • Missouri Court of Appeals
    • January 23, 2007
    ...aside is treated as an independent action, and the decision to grant or deny the motion is an independent judgment. Moore v. Baker, 982 S.W.2d 286, 288 (Mo. App. W.D.1998) (citing Kueper v. Murphy Distrib., 834 S.W.2d 875, 878 (Mo.App. E.D.1992)); see Order of Missouri Supreme Court, June 2......
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