Ray Nolting Oldsmobile Co. v. 66 Watson Development Co., 35296
| Decision Date | 19 November 1974 |
| Docket Number | No. 35296,35296 |
| Parties | RAY NOLTING OLDSMOBILE COMPANY, Plaintiff-Appellant, v. 66 WATSON DEVELOPMENT COMPANY et al., Defendants-Respondents. . Louis District, Division Three |
| Court | Missouri Court of Appeals |
Leonard R. Yocum, St. Louis, for plaintiff-appellant.
Husch, Eppenberger, Donohue, Elson & Cornfeld, Myron Gollub, St. Louis, for defendants-respondents.
This case began in 1966 and has lurched through a labryinth of legal maneuverings scarcely calculated to bring swift disposition of the litigation. Unfortunately, the case does not conclude with this opinion. On April 29, 1966, plaintiff-appellant filed suit against defendants for breach of a lease agreement. Defendants filed an answer and counterclaimed against plaintiff and others as counterclaim defendants. Numerous motions and amendments to pleadings of various assortment were filed from time to time through the years by each of the parties. On April 7, 1972, in response to one of defendants' motions, the trial court filed a memorandum providing that a motion to strike plaintiff's pleadings would be sustained unless responsive answers to interrogatories previously submitted by defendants were filed and served within 30 days from April 7, 1972. On May 8, 1972, plaintiff did file additional answers to interrogatories, but on May 9, 1972 the trial court entered the following order:
'Pursuant to order of April 7, 1972, plaintiff's petition for relief against all defendants are (sic) stricken, and judgment by default entered for defendants against plaintiff.'
On May 24, 1972 plaintiff filed a motion to vacate the May 9 order, and the motion was sustained eight months later on January 22, 1973. On February 1, 1973 defendants filed a motion with the trial court to vacate the January 22 order and also filed notice of appeal of the January 22 order with this court. Defendants failed to perfect the appeal and it was ultimately dismissed by this court on November 20, 1973. But on March 9, 1973, the trial court sustained defendants' motion to vacate the January 22 order, thereby in effect reinstating the May 9, 1972 order which had stricken plaintiff's petition and given default judgment to defendants on plaintiff's action. Plaintiff thereupon appealed the March 9 order which is now before us.
From the morass of legal manipulations and caverns of confusion we scorecard the relevant dates as follows:
1) April 7, 1972: court orders plaintiff to file additional answers to defendants interrogatories within 30 days;
2) May 8, 1972: plaintiff files additional answers to interrogatories;
3) May 9, 1972: court enters default judgment against plaintiff's petition for failure to file additional answers within 30 days;
4) January 22, 1973: trial court enters order vacating May 9 order 5) February 1, 1973: defendant files motion to vacate January 22 order and also appeals January 22 order to Court of Appeals which ultimately dismisses appeal;
6) March 9, 1973: trial court sustains defendants' motion to vacate January 22 order thereby reinstating May 9 order which entered default judgment against plaintiff's petition.
Plaintiff argues that when defendants appealed the January 22 order, the trial court lost jurisdiction of the case and was without authority to issue any further orders including the order of March 9 which reinstated the May 9 order. Defendants counter that the May 9 order was a final judgment; that Rule 75.01, V.A.M.R., allows a trial court only 30 days to retain control of a judgment, or, at most, the trial court has 90 days to act under Rule 78.04 if a motion for new trial is filed; that since the trial court did not act on the May 9 order until January 22, a lapse of over 8 months, the trial court lost jurisdiction of the case. Both parties agree that the February 1 filing of the notice of appeal from the January 22 order deprived the trial court of jurisdiction to enter the March 9 order.
To start somewhere in the unraveling of this involuted case, we turn to the May 9 order. Proper disposition of the case depends on the determination of whether the order of May 9, 1972 rendering default judgment against plaintiff's petition was a final, appealable judgment. We conclude that it was not. The May 9 order was aimed only at plaintiff's petition and did not dispose of the counterclaims which defendants had filed against plaintiff and others. The order makes no mention of the counterclaim and is directed only to the dismissal of plaintiff's petition. Before an order becomes appealable, it must dispose of all parties and issues, including counterclaims. The order of May 9 did not dispose of defendants' counterclaims. Therefore, it was not a final, appealable order. Nadler v. Continental Insurance Co., 511 S.W.2d 446 (Mo.App.1974); Brown Supply Co. v. J. C. Penney Co., 505 S.W.2d 463 (Mo.App.1974).
Generally, as suggested by defendant, under Rule 75.01 the trial court is limited to a 30 day period in which it may vacate its judgment, or, under Rule 78.04 to a 90 day period if an appropriate after-trial motion is filed. However, such time limits are not applicable when, as in this case, the judgment is not final. State ex rel. Schweitzer v. Greene, 438 S.W.2d 229 (Mo. banc 1969); State ex rel. Aubuchon v. Jones, 389 S.W.2d 854 (Mo.App.1965). Consequently, the trial court would have had authority on January 22 to vacate the May 9 order and on March 9 to vacate the January 22 order, which would leave the May 9 order still in effect with only the interlocutory decree for default judgment on plaintiff's petition enduring.
But what remains--the May 9 order--is an invalid order. The May 9 order is premised on the mistaken assumption that plaintiff did not file answers to...
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