Parker v. Johnson

• Citation: 22 Mo.App. 516
• Parties: PROSPER P. PARKER ET AL., Defendants in Error, v. B F. JOHNSON, Plaintiff in Error.
• Decision Date: 14 June 1886
• Court: Court of Appeals of Kansas

22 Mo.App. 516

PROSPER P. PARKER ET AL., Defendants in Error, v. B F. JOHNSON, Plaintiff in Error.

Court of Appeals of Missouri, Kansas City.

June 14, 1886

ERROR to Jackson Circuit Court, HON. TURNER A. GILL, Judge.

Reversed.

The case is stated in the opinion.

F TITUS, for plaintiff in error.

I. The plaintiffs went out of court of their own accord, and, being out, were entitled to no further relief in the cause. Dumey v. Schœ ffer, 20 Mo. 323; Shulter v Boekwinkle, 19 Mo. 647; Pol v. Dominie, 46 Mo 113; Koger v. Hays, 57 Mo. 339; Gentry v. Black, 32 Mo. 542; Chiles v. Wallace, 83 Mo. 84.

II. Judgment for plaintiff, after voluntary dismissal by him, is invalid, without notice or process on defendant. Pacific Railroad v. County Court, 55 Mo. 162; sect. 3239, Rev. Stat.; Shaw v. Pershing, 57 Mo. 416, Briant v. Fudge, 63 Mo. 489.

KAGY & BREMERMAN, for defendants in error.

I. The court, during the term, had all the proceedings in its breast, and it was discretionary with the court to set the final judgment aside, and it did set it aside, and plaintiff in error made no complaint. Freeman on Judgments (3 Ed.) sect. 90; Dougherty v. Pres't, etc., 53 Mo. 428; Harber v. Railroad, 32 Mo. 579; Randolph v. Sloan, 53 Mo. 155. The cause then stood as though it had never been tried.

II. Every presumption is in favor of courts of general jurisdiction. The court had the right to reinstate the cause, and the presumption is that it did so for a good reason. The action of the court being discretionary this court will not interfere. Hayes v. Gage, 2 Texas 501; Heydon v. Lockhart, 1 Bibb. (Ky.) 308; Freeman on Judgments (3 Ed.) sect. 124.

ELLISON J.

This was an ordinary action on an account; service was had on defendant, and, on trial, judgment was rendered in plaintiff's favor. Defendant, in due time, filed his motion for new trial, which was granted, whereupon plaintiff voluntarily dismissed the case, and final judgment was regularly entered for defendant " that he go thereof without day, and have and recover his costs," etc. Afterwards, but during the same term, without notice to defendant, plaintiff filed a motion to reinstate the cause. Afterwards, defendant not appearing, the motion was sustained and the cause reinstated.

Afterwards, defendant not appearing, judgment was rendered for plaintiff for $1,113.45. During the same term defendant appeared, for the purpose of his motion, only, and moved to set aside the last judgment, which was sustained. Afterwards, defendant still not appearing, judgment was again rendered for plaintiffs. The next day, defendant, appearing specially, filed ??tion to set aside and arrest the judgment, and strike the cause from the docket. This motion was overruled, and defendant brings the case to this court.

The question presented is, could plaintiff voluntarily dismiss his case, and, after final judgment for defendant, have the cause reinstated at same term, without notice to defendant of his motion to that effect? I think he could not. It is true that all proceedings are in the breast of the court during the term at which final judgment is rendered.

But, because the power exists in the court is no reason why the parties to be affected shall not have notice of the proceedings. If notified and given an opportunity to be heard, they may be successful in convincing the court that its power or authority should not be exercised in the given case.

When once summoned, a party to a cause is in court, and he must take notice of what is done therein up to final judgment, and by such proceedings he is bound. But " after judgment the case and the necessity for his presence is presumed to be at an...