Reed v. Mirts, 52009

• Decision Date: 03 February 1969
• Docket Number: No. 52009,52009
• Citation: 437 S.W.2d 719
• Parties: Ricky Lee REED, a Minor, by Norma Reed, Next Friend, Plaintiff-Respondent, v. Ruby Fay MIRTS, Administratrix of the Extate Ruby Fay MIRTS, Administratrix of the Estate Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 719

437 S.W.2d 719

Ricky Lee REED, a Minor, by Norma Reed, Next Friend Plaintiff-Respondent, v. Ruby Fay MIRTS, Administratrix of the Extate Ruby Fay MIRTS, Administratrix of the Estate Defendant-Appellant.

No. 52009.

Kansas City Court of Appeals, Missouri.

Feb. 3, 1969.

Howard F. Major, W. Hampton Ford, Columbia, for defendant-appellant.

Granville E. Collins, Fulton, T. E. Lauer, Columbia, for plaintiff-respondent.

JAMES W. BROADDUS, Special Commissioner.

This is an appeal from the order of the trial court overruling the motion of defendant Ruby Fay Mirts, Administratrix, to set aside the dismissal of co-defendant Samuel Owen Burks.

The question presented here arises from for following facts. On November 7, 1962, the plaintiff, Ricky Lee Reed, a minor, by Norma Reed, his next friend, filed his petition against defendants Samuel Owen Burks, Ruby Fay Mirts, Administratrix of the Estate of Francis Leon Robinson, deceased, and Golda Knipp Robinson, seeking damages in the amount of $25,000, for bodily injuries sustained as a result of an automobile accident. Before trial plaintiff dismissed as to defendant Golda Knipp Robinson. On January 30, 1963, a verdict was rendered against defendants Burks and Mirts in the sum of $11,590.

Defendant Burks filed a motion to set aside the verdict or in the alternative for a new trial. The motion was overruled and Burks perfected his appeal.

Defendant Mirts did not file any after trial motions and did not appeal.

Thereafter, this court on June 7, 1965, reversed the judgment of the trial court and remanded the cause for a new trial. The opinion of the court (Reed v. Burks) is reported in 393 S.W.2d 377.

The transcript recites the following:

'DISMISSAL AS TO DEFENDANT SAMUEL OWEN BURKS

'Now comes the plaintiff, Ricky Reed, a Minor, by his next friend, Norma Reed, and dismisses his cause of action filed herein against defendant Samuel Owen Burks.

'Dated: May 15, 1967.'

The transcript next recites that on July 19, 1967, defendant Mirts, appellant herein, filed the following:

'MOTION TO SET ASIDE ORDER AND JUDGMENT

'Comes now the defendant Ruby Fay Mirts, Administratrix of the estate of Francis Leon Robinson, deceased, in the above entitled cause and moves the court to set aside the Order and Judgment entered herein on May 15, 1967, for the reason that no notice of said entry was given defendant Ruby Fay Mirts, Administratrix of the estate to Francis Leon Robinson, deceased, as required by Rule 74.78 Missouri Rules of Civil Procedure and as grounds therefor states:

'1. That the effect of the order and judgment entered May 15, 1967, is to give final judgment to the plaintiff against this defendant and make this defendant liable for interest thereon from the date of said order and judgment, May 15, 1967.

'2. That had this defendant known of the entry of said order and judgment on May 15, 1967, this defendant would have immediately taken steps to prevent interest from accruing against this defendant.'

Supreme Court Rule 74.78, V.A.M.R. reads as follows:

'74.78 NOTICE OF ENTRY OF ORDERS AND JUDGMENTS--Upon the entry of an order or judgment, the clerk shall serve a notice of the entry by mail in the manner provided in Rule 43.01 upon every party affected thereby who is not in default for failure to appear and who was not present in court in person or by attorney at the time of the entry of such order or judgment. If such notice is not given, said order or judgment shall be set aside for good cause shown upon written motion filed within 6 months from the entry of the order or judgment.'

Thus, appellant's motion asked that the trial court, pursuant to the above Rule 'set aside the Order and Judgment entered herein on May 15, 1967.' The record however, discloses no order or judgment on that day. It does show a May 15 entry of the Judge's Docket to the effect that 'PLTF DISM AS TO DEFT SAMUEL...