Robinson v. Clements

Decision Date03 October 1966
Docket NumberNo. 24492,24492
Citation409 S.W.2d 215
PartiesIrene ROBINSON, Appellant, v. Vincent J. CLEMENTS and Betty I. Clements, Respondents.
CourtMissouri Court of Appeals

Beals & Feutz, Dwight Beals, Richard E. Feutz, Camdenton, for appellant.

Arthur H. Stoup, Kansas City, for respondents.

MAUGHMER, Commissioner.

The plaintiff's default money judgment against defendants was, upon motion, set aside. Plaintiff then moved for a rehearing or reinstatement of the judgment, which the trial court denied, whereupon plaintiff appealed.

The plaintiff, Irene Robinson, is a widow, who is now 89 years of age. The defendants, Vincent J. and Betty I Clements, are husband and wife, and Betty is the plaintiff's granddaughter. The petition is in four counts: it is alleged in count 1 that plaintiff, in November, 1959, loaned defendants $1400, which had never been repaid; in count 2 that in April, 1960, plaintiff owned a Ford Fairlane automobile, which was reasonably worth $1,095, that she assigned title thereto to defendants, who traded same for another automobile with title in defendants' names; in count 3 that in December, 1962, plaintiff had a savings account totaling $3,786.63, which she placed in a joint account with the defendant Betty I. Clements, who converted the whole sum to cash and failed to account for $307.00 thereof; in count 4 it is asserted that defendants have cashed and retained the proceeds from four of plaintiff's social security checks in the amount of $40 each.

We shall set forth the exact dates upon which various pertinent events occurred:

April 14, 1965, plaintiff filed her petition.

April 22, 1965, personal service was had on both defendants.

May 25, 1965, when they were already three days in default, defendants filed application for 30 days additional time in which to plead. Defendants were granted an extension until June 23, 1965.

July 1, 1965, defendants had filed no pleading. Plaintiff took a default judgment on each count of her petition, which judgment, including interest, totaled $3,234.00.

All of the above described proceedings took place in Division No. 11, Jackson County Circuit Court, and before Judge J. Donald Murphy. Shortly thereafter Judge Murphy went on vacation and the following proceedings were in Division No. 6, before Judge Keith P. Bondurant:

August 13, 1965, defendants filed their motion to set aside the default judgment and alleged:

(1) that they had a meritorious defense; (2) defendants filed a photostatic copy of a money order in the amount of $2,473.93, payable to plaintiff and a receipt signed by plaintiff, acknowledging payment in full of all indebtedness due her from defendants; (3) that in taking the default judgment plaintiff failed to comply with Rule 16, Rules of Jackson County Circuit Court, which provides that 'Each trial division shall set its trial docket not less than four weeks in advance of the trial date' and give notice in a 'legal publication'; (4) that fraud was committed in that plaintiff's attorney stated or at least suggested to the court that defendants were not represented by counsel; plaintiff's counsel was directed by the court and agreed to notify defendants of the default judgment, but did not do so until more than 30 days had passed. The contents of this motion were sworn to by defendants' attorney as being true and correct according to his best knowledge and belief.

On August 18, 1965, the whole matter was before the court with counsel for both sides present. The parties agreed that neither plaintiff nor her attorney ever notified defendants or their attorney prior to August 5, 1965, that a default judgment had been taken. Mr. Beals, attorney for plaintiff, said that Judge Murphy, when the default was entered, said: 'Mr. Beals, you are to notify the defendants. You do it.' And that he (Mr. Beals) replied: 'Okay'. Mr. Beals discounts the effect of his noncompliance insofar as plaintiff's judgment is concerned by saying that it all transpired after entry of the judgment and therefore had nothing to do with its procurement or its present validity.

The defendant, Betty I. Clements, testified that she had used plaintiff's money to pay plaintiff's hospital and doctor bills. She also produced a receipt signed by plaintiff, acknowledging receipt in full for all monies due her.

Arthur Stoup, attorney for defendants, also testified. He was employed in the matter but except for a motion asking for additional time to plead, filed no pleading and really did nothing until 43 days after the default. He, too, had been on vacation part of the time. He said Mr. Beals told him that Judge Murphy told Beals to notify defendants of the default, but that Mr. Beals did not do so until more than 30 days had passed. There was no further explanation, or excuse or justification suggested as to why Mr. Stoup, defendants' attorney, had failed to file a timely pleading in the matter.

On September 1, 1965, the court (Judge Bondurant) by the following order, set aside the default judgment:


'This matter came on for hearing on defendants' Motion To Set Aside Default Judgment and Notice of hearing on such Motion. The Court having heard the evidence and having received, read and considered defendants' First Amended Motion To Set Aside Default Judgment, Suggestions in Support of Defendants' Motion to Set Aside Default Judgment, Plaintiff's Suggestions in Opposition to Defendants' Motion to Set Aside Default Judgment, Affidavit of the plaintiff and being fully advised in the premises it is hereby ordered that said Motion to Set Aside Default Judgment is sustained and the default judgment heretofore taken in favor of plaintiff and against defendants on July 1, 1965 is hereby set aside and for naught held and defendants are given leave to file responsive pleadings within ten days of the date hereof'.

Plaintiff's next pleading styled 'Motion for Rehearing or to Reinstate the Judgment' was filed on September 8, 1965. Both sides filed suggestions, briefs and arguments. On November 5, 1965, the motion was overruled. On November 12, 1965, plaintiff filed her Notice of Appeal.

In her brief plaintiff says: 'The sole question involved is: Did the Motion contain verified statements sufficient to set aside the judgment and if it did, did the facts support the statements?'.

Defendants say first that the appeal should be dismissed because there can be no appeal from an order setting aside a default judgment, since in such a situation there is no 'final judgment' which the statute requires as the basis for an appeal.

The right of appeal did not exist in actions at law under the common law and has been conferred solely by statute. Tucker v. Miller, 363 Mo. 820, 253 S.W.2d 821. Section 512.020, V.A.M.S. states 'Who may appeal'. We quote in part:

'Any party to a suit aggrieved by any judgment of any trial court in any civil cause from which an appeal is not prohibited by the constitution, nor clearly limited in special statutory proceedings, may take his appeal to a court having appellate jurisdiction from any order granting a new trial, * * * or from any final judgment in the case or from any special order after final judgment in the cause; but a failure to appeal from any action or decision of the court before final judgment shall not prejudice the right of the party so failing to have the action of the trial court reviewed on an appeal taken from the final judgment in the case'. (Italics added).

Rule 82.05, V.A.M.R. declares when judgments become final:

'* * * a judgment becomes final at the expiration of thirty days after the entry of such judgment, if no timely motion for a new trial is filed.

'In the event a motion for a new trial is filed, the judgment becomes final at the expiration of ninety days after the filing of such motion or, if such motion is passed on at an earlier date, then at the date of disposition of said motion.'

Appeals involving default judgments arise under different factual situations respecting the pleadings and the times of entry. One classification is where the trial court refuses to set aside the default. In such cases the judgment is clearly final. The losing trial court litigant has exhausted his possible remedies in that forum. Beyond question that matter is then ripe for appeal. Carter v. Levy, Mo.App., 217 S.W. 549, 550.

A trial court has rather complete control over judgments for 30 days after entry. Section 510.370, V.A.M.S. provides as follows:

'Not later than thirty days after entry of judgment the court of its own initiative may order a new trial for any reason for which it might have granted a new trial on motion of a party, and every order granting a new trial shall specify the grounds therefor.'

Rule 75.01, V.A.M.R. states in part:

'The trial court retains control over judgments during the 30 day period after entry of judgment and may vacate, reopen, correct, amend or modify its judgment for good cause within that time.'

Under these provisions a judgment does not become final until thirty days have passed after its entry. Numerous decisions are to the effect that where a default judgment is set aside by the trial court at any time within thirty days after entry, no appeal will lie as there is no final judgment upon which an appeal could be predicated. Harper v. Harper, Mo.App., 379 S.W.2d 889; Kallash v. Kuelker, Mo.App., 347 S.W.2d 467, and Owens v. Owens, Mo.App., 280 S.W.2d 867.

In Bussiere's Adm'r v. Sayman, 257 Mo. 303, 165 S.W. 796, the Supreme Court ruled that when a default judgment was set aside there had been no 'final judgment' and the matter was not ripe for appeal. The opinion then not only indicated, but stated, that appellant might wait until there was an actual trial and a 'final judgment' and then take his appeal, at which time he would be entitled to have an appellate court pass upon ...

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16 cases
  • Sprung v. Negwer Materials, Inc.
    • United States
    • Missouri Supreme Court
    • April 14, 1987
    ...erred in setting aside the default judgment entered against defendant March 11, 1985. Judge Donnelly's dissent cites Robinson v. Clements, 409 S.W.2d 215 (Mo.App.1966), as authority for the trial court setting the final default judgment on a motion filed after the expiration of thirty days ......
  • Mid-States Tubulars, Inc. v. Maverick Tube Corp.
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    • July 14, 1987
    ... ... Cf. e.g. Robinson v. Clements, ... 409 S.W.2d 215, 221 (Mo.App.1966) (default taken after plaintiff's attorney suggested to court defendants were not represented ... ...
  • Coonis v. Rogers
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    • Missouri Court of Appeals
    • March 10, 1967
    ...ordered. STONE, P.J., and HOGAN, J., concur. 1 V.A.M.R. 82.01; Steffan v. Steffan, Mo.App., 390 S.W.2d 587, 590(1); Robinson v. Clements, Mo.App., 409 S.W.2d 215, 218(1); Goldstein v. Floridian Homes, Inc., Mo.App., 331 S.W.2d 124, 126(2); State ex rel. State Highway Commission v. Mahon, Mo......
  • Dennis v. Jenkins
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    ...default judgment. 1 In fact this court has twice followed Casper v. Lee (in Fisher v. Mahler, Mo.App., 407 S.W.2d 590 and Robinson v. Clements, Mo.App., 409 S.W.2d 215), holding that if the trial court vacates the plaintiff's final default judgment, plaintiff has the right of appeal. The ju......
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