Puckett v. Swift & Co.
Decision Date | 06 March 1950 |
Docket Number | No. 21330,21330 |
Citation | 229 S.W.2d 713 |
Court | Missouri Court of Appeals |
Parties | PUCKETT v. SWIFT & CO. |
Nolan M. Chapman, Don Chapman, Chillicothe, for appellant.
Russell N. Pickett, Eugene E. Andereck, Pickett & Pickett, Trenton, for respondent.
This appeal presents this question: Does the New Civil Code of Procedure, Laws of 1943, Sections 58, 61, 63 and 64, Mo.R.S.A. Secs. 847.58, 847.61, 847.63, 847.64 require a defendant in a civil action to file an answer to the plaintiff's petition within thirty days after service of summons upon said defendant, when defendant has elected within thirty days after service of summons upon him to file a motion as provided for in Sections 61, 63 and 65, Mo.R.S.A. Secs. 847.61, 847.63, 847.65, of said Act?
As a corollary to the above inquiry, also arises the question, as to whether a circuit court in Missouri has power to require by a rule of practice that an answer be filed within thirty days after summons is served upon defendant, and that the filing of a motion only within said thirty days, without timely answer, will, in the court's discretion, be taken as a default.
The facts out of which these questions arise are: Plaintiff filed his petition for damages in the Circuit Court of Grundy County, Missouri, which is in the Third Judicial Circuit, on March 26, 1949. Two days later, on March 28, a copy of the summons and petition was served upon defendant. On April 27, 1949, defendant filed in the office of the clerk of that court, its motion to dismiss and to make more definite plaintiff's petition. On April 29, 1949, plaintiff filed his motion for Interlocutory Judgment. This latter motion recited that although defendant had been duly served it had 'failed to appear and file its answer within the time prescribed by Rule No. 10 of the rules of practice of the Circuit Court of Grundy County, Missouri; that said Rule No. 10 was enacted by the Circuit Court of Grundy County, Missouri, on the 10th day of January, 1949, and before the filing of this action, and provides as follows: 'Rule 10.--It is expressly declared to be the policy of this court to require answer to be filed within the time limit of pleading and until otherwise expressly declared by a superior authority, the filing of a motion only, without timely answer will, in the Court's discretion, be taken as a default. Each clerk is directed to give notice wherever possible of this attitude.''
On May 1, 1949, defendant received a copy of plaintiff's Motion for Interlocutory Judgment and notice that the same would be called up for hearing on May 6, 1949. On May 2, 1949, defendant's attorneys prepared an answer on behalf of defendant and mailed a copy to the clerk and another to the attorneys for plaintiff, which were received on May 4, 1949. On May 6, 1949, defendant's attorneys asked leave of court to file the tendered answer and offered to go to trial at any reasonable time in the future that the court might set said cause for trial. The court refused to allow defendant's answer to be filed and on the same day, May 6, 1949, entered an interlocutory judgment against defendant and then gave defendant ten days in which to plead. On May 14, 1949, defendant filed its motion to set aside the interlocutory judgment, which was sworn to and supported by affidavits, and the hearing on said motion was set for May 27, 1949. This motion was carefully drawn and, among other things, set up that defendant had a meritorious defense; that neither defendant or its attorneys had actual knowledge of said Rule 10; that said attorneys reside in Chillicothe, Missouri, and are members of the Livingston County Bar, of the 36th Judicial Circuit, in which no similar rule of practice exists and in which judicial circuit a defendant in an action may file a motion in a cause within 30 days after service of summons on him, similar to that filed by defendant herein, without filing his answer at the same time, and the filing of said motion delays the time for defendant filing answer, until 10 days after the court's action on the motion, unless the court fixes a different time; that the failure of defendant to file its answer within the period allowed by said Rule 10 was not on account of any desire or intent of its attorneys to ignore the policy and rules of the Circuit Court of Grundy County, but because of lack of actual knowledge of the adoption of said rule; said motion further set up that said Rule 10 is in conflict with and contrary to the spirit and terms of the New Civil Code of Procedure, particularly to Sections 58, 61, 62 and 64 thereof.
At the hearing, on May 27, 1949, on the motion to set aside the interlocutory judgment, defendant offered evidence tending to support its motion, and, before the court passed on it, again tendered its answer and asked leave to file the same, offering to go to trial at any reasonable time the court might set the case, which offer was refused. The court then entered its order refusing to set aside said interlocutory judgment and proceeded to hear evidence on the question of damages. On completion of the evidence, the court rendered final judgment against defendant in the sum of $2,183.32 and costs. Defendant timely filed its motion for new trial and, upon the same being overruled, prefected its appeal to this court.
In arriving at a solution of the question presented in the opening paragraph of this opinion we deem it best to set out Section 58 of the New Code. It is:
Also Section 63. It is:
Defendant contends that the trial court erred in rendering an interlocutory judgment, adjudging defendant to be in default while defendant's combined motion to dismiss and to make more definite and certain was at the time on file and undertermined by the court. In other words, that the filing of any of the motions provided for in Sections 61, 62, 63 and 64 of the New Code postponed the time for the filing of an answer or other responsive pleading under Section 58, until action on such motions by the trial court.
There is no decision by our appellate courts directly construing Section 58. However, others who have studied the New Code, have given expression to their views.
Hon. Thomas E. Atkinson, Professor of Law, University of Missouri, in his article entitled 'Parties and Pleadings in the Missouri's Proposed Code of Law Procedure' reported in Missouri's Law Review, Volume 7, No. 1, at Page 38, makes this pertinent statement in his discussion, to-wit: ...
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