Precision Metal Workers v. Northside Mercantile Co.

• Decision Date: 02 February 1926
• Docket Number: No. 19029.,19029.
• Citation: 280 S.W. 82
• Parties: PRECISION METAL WORKERS v. NORTHSIDE MERCANTILE CO. et al.
• Court: Missouri Court of Appeals

280 S.W. 82

PRECISION METAL WORKERS v. NORTHSIDE MERCANTILE CO. et al.

No. 19029.

St. Louis Court of Appeals. Missouri.

February 2, 1926.

Rehearing Denied February 23, 1926.

Appeal from St. Louis Circuit Court; Franklin Miller, Judge.

Action by the Precision Metal Workers against the Northside Mercantile Company and another. From a ruling denying their motion to set aside a judgment for the plaintiff, defendants appeal. Affirmed.

Max Sigoloff, of St. Louis, for appellants. Wilson & Trueblood, of St. Louis, for respondent.

BECKER,

Defendants below filed a motion in the circuit court to vacate and set aside a judgment rendered against them at a prior term, basing their motion upon section 1552. Revised Statutes of Missouri, 1919. From an adverse ruling on their motion, defendants have prosecuted this appeal.

It appears that the plaintiff below originally filed suit against the defendant Northside Mercantile Company, a corporation, for goods, wares, and merchandise sold and delivered to defendant, "the items of which, the dates when delivered, and the amounts charged therefor," according to the petition, "appear upon the annexed statement of account herewith filed and marked'Plaintiff's Exhibit A.'" It is conceded that said Exhibit A referred to in the petition was not filed with the petition. Service was duly had upon the defendant and a default judgment entered during the month of June, 1923. Subsequently, however, during the month of August, during the same term of court, upon plaintiff's motion, the default judgment was set aside and an amended petition filed by leave, in which the defendant "Isadore Needle, trading as the Northside Mercantile Company," was made an additional defendant. In due course service was had upon this additional defendant, and at the October term, 1923, both defendants remaining in default, default and inquiry was granted plaintiff as against each of them. Thereafter on November 23, 1923, plaintiff for the first time filed its Exhibit A, in which the items of the account sued on, the dates when delivered, and the amounts charged therefor appear in detail; and evidence was then adduced and final judgment rendered against both defendants in the sum of $732.34. After the term at which the judgment had been rendered had elapsed, execution was issued, and the sheriff seized and levied upon the place of business of the defendant Isadore Needle, trading as the Northside Mercantile Company. The defendant Needle thereupon filed his motion to set aside and vacate said judgment; but while said motion was pending, said defendant, in order to release said levy and seizure of his stock of goods, under protest paid the sheriff the amount of the execution. The defendants' motion to set aside and vacate the judgment in question assigns as ground therefor: (a) That plaintiff's petition and amended petition each failed to specify the term of the court to which the suit was brought; (b) that neither the original nor amended petition did in fact contain an itemized statement of the account sued upon, nor was any statement attached thereto, and therefore neither stated a cause of action.

Our Supreme Court has repeatedly held that a motion to vacate a judgment filed after the term at which the judgment was rendered, whether for irregularities on the face of the record or for matters dehors the record, is in the nature of an independent proceeding, and that the order made by the court upon such a motion is an order from which an appeal or writ of error lies. This ruling also applies to motions filed under section 1552 and to motions which are in the nature of writs of error coram nobis. Audsley v. Hale, 261 S. W. 117, 303 Mo. 451, loc. cit. 463; State ex rel. Potter v. Riley, 118 S. W. 647, 219 Mo. 667, loc. cit. 695; Scott v. Rees, 253 S. W. 998, 300 Mo. 123; Shuck v. Lawton, 155 S. W. 20, 249 Mo. 168. See, also, Osage Inv. Co. v. Sigrist, 250 S. W. 39, 298 Mo. 139; Bussiere's Adm'r v. Sayman, 165 S. W. 796, 257 Mo. 303.

Section 1258, Revised Statutes of Missouri 1919, provides that—

"It shall not be necessary for a party to set forth in a pleading the items of an account therein alleged, but if they be...