Nelson v. Ghiselin

• Decision Date: 19 May 1885
• Citation: 17 Mo.App. 663
• Parties: H. NELSON, Appellant, v. R. GHISELIN, Respondent.
• Court: Missouri Court of Appeals

17 Mo.App. 663

H. NELSON, Appellant,

v.R. GHISELIN, Respondent.

St. Louis Court of Appeals, Missouri.

May 19, 1885.

APPEAL from the St. Louis County Circuit Court, EDWARDS, J.

Affirmed.

ZACH. J. MITCHELL for the appellant: The affirmance of the judgment of a justice is a judgment which can be set aside only within four days thereafter.-- Milligan v. Dunn, 19 Mo. 644; Matthews v. Cook, 35 Mo. 289; Marcau v. January, 52 Mo. 523.

DYER, LEE & ELLIS for the respondent.

ROMBAUER, J., delivered the opinion of the court.

This cause, although involving only a small amount, necessarily presents a question of grave practical importance. That question is, to what extent, and subject to what restrictions, trial courts may control judgments rendered by them, during the term at which such judgments are rendered.

The plaintiff obtained a judgment against the defendants before a justice of the peace. The defendants appealed to the circuit court. In that court the case was regularly docketed for trial, for a day certain, and the defendant failing to appear on said day, the circuit court, on motion of the plaintiff, dismissed the appeal and affirmed the judgment of the justice. On a subsequent day of the same term, but more than four days after the rendition of this judgment, the defendant filed his motion to set aside the judgment and accompanied it with what purports to be an affidavit of merits and diligence, which motion he afterwards, during the same term, against the plaintiff's objections, was permitted by the court to supplement with another affidavit of merits. Subsequently, and also during the same term of court, the court sustained the defendant's motion, and set the case for hearing at a later day of the term, and at the last named day called the case for trial. The defendant announced himself ready for trial, but the plaintiff, by counsel, refused to appear any further in the case, whereupon the court dismissed the case and rendered judgment for the defendant against plaintiff for costs. All this was done during the same term.

Two fastinctly appear: First, that at every stage of the proceedings, subsequent to the affirmance of the judgment, the plaintiff was present in court and represented by counsel, and second that the plaintiff saved whatever objections he may have had to the action of the court at the proper time, and in the proper manner. The appellant now claims, as he claimed in the court below, that after the lapse of four days subsequent to the rendition of the judgment of affirmance, the trial court lost jurisdiction to vacate the judgment either upon the defendant's motion or its own, and that all its subsequent proceedings were illegal; while the defendant claims that although he had no legal right to have his motion considered, the court had the legal power to consider it at any time during the term, and to vacate any judgment rendered by it during the term when such judgment was rendered, either upon the defendant's suggestion, or upon its own motion.

We believe that neither the plaintiff's nor the defendant's position can be sustained to the full extent claimed. Mr. Freeman, in his work on Judgments, states the proposition thus: “The power to vacate judgments was conceded by the common law to all its courts. This power was exercised in a great variety of circumstances, and subject to various restraints. The practice in the different states is in many respects so conflicting, that few rules can be laid down universally applicable. One rule, however, is undoubted; that is, that the power of the court over its judgments, during the entire term at which they are rendered is unlimited.”--Freem. on Judg. sect. 90. An examination of the cases relied upon by the author in support of this text, fails to support it.

The power of trial courts to vacate their own judgments during the term, we conceive is not, and never has been, absolute, but even where not...