Salle for Use and Benefit of Mandel v. Holland Furnace Co.

• Decision Date: 11 July 1960
• Docket Number: No. 47680,No. 1,47680,1
• Citation: 337 S.W.2d 87
• Parties: M. SALLE, for the Use and Benefit of Samuel S. MANDEL, Samuel S. Mandel and Frances Scales, Respondents, v. HOLLAND FURNACE COMPANY, a Corporation, Appellant
• Court: Missouri Supreme Court

Page 87

337 S.W.2d 87

M. SALLE, for the Use and Benefit of Samuel S. MANDEL Samuel S. Mandel and Frances Scales, Respondents, v. HOLLAND FURNACE COMPANY, a Corporation, Appellant.

No. 47680.

Supreme Court of Missouri, Division No. 1.

July 11, 1960.

Flynn, Parker & Badaracco, St. Louis, for appellant-defendant.

Samuel S. Mandel and Louis E. Zuckerman, St. Louis, for respondents.

HOLLINGSWORTH, Judge.

Defendant has appealed from an order of the trial court setting aside a judgment dismissing plaintiffs' action, without prejudice, for failure to prosecute. Its contention is that no timely motion for a new trial was filed and that, in the absence of the filing of such motion, the trial court was without jurisdiction to set aside the order of dismissal following a lapse of more than 30 days after it was made. For the reasons hereinafter stated, we are convinced that defendant's contention is sound and that the judgment of dismissal must stand.

Plaintiffs' action was filed in March, 1953. Thereafter, on February 14, 1955, plaintiffs, by leave of court, filed their amended petition. It alleged, in substance, that defendant, in July, 1952, wrongfully entered upon certain described real estate owned by plaintiffs and wrongfully and maliciously removed therefrom a furnace, injuring and diminishing the value of plaintiffs' real property in the sum of $2,000, for which plaintiffs prayed judgment for $2,000 actual damages and $10,000 punitive damages. Inasmuch as the amount in dispute, exclusive of costs, exceeds $7,500 and the notice of appeal taken herein was filed prior to January 1, 1960, jurisdiction of the appeal lies in this court. Constitution, Art. V, Sec. 3, V.A.M.S.; Section 477.040 RSMo 1949, V.A.M.S., ¹ as amended by Laws 1959, S.B.7, Sec. 2.

The pertinent portions of the transcript, literally transcribed, reveal the following proceedings:

(A) 'On February 1, 1956, this cause was called for trial; plaintiff appeared; and the cause was passed to the dismissal docket of March 6, 1956.'

(B) 'On February 28, 1956, defendant was granted to March 19, 1956, to plead to plaintiff's First Amended Petition.'

(C) 'On February 3, 1959, this cause was called; plaintiffs appeared; and the cause was passed to the Dismissal Docket of March 17, 1959.'

(D) 'On March 17, 1959, this cause was assigned to Division No. 1; the cause was called; plaintiffs came not; and the cause was dismissed, without prejudice, for failure to prosecute at plaintiffs' cost.'

(E) 'On April 16, 1959, plaintiffs' motion to reinstate this cause on the trial docket was duly filed, in words and figures, as follows (caption and signature omitted):

'Comes now the movant, the attorney for the plaintiffs and moves this Honorable Court to reinstate the above entitled cause to the trial docket for the following reasons, to-wit:

'1. This movant has come into this case only after circumstances forced the removal of several attorneys ahead of him. Illness caused the last preceding attorney to leave the case, and this movant was unable to ascertain the facts that would be in possession of the said attorney due to that illness.

'2. No good purpose would be served by the dismissal of the case, in fact the opposite would occur, that is, the object of the dismissal docket is to get cases to trial or off the court records, to continue the action of dismissal would only result in a refiling of the case, in which case the same cause would have a higher docket number and not come to trial as soon as if it were reinstated.

'3. This Honorable Court having entered the order less than thirty days (30) prior to filing has the jurisdiction to set aside the said order, dismissing the case, as a matter of complete discretion.

'4. Movant, tenders by this statement the court cost refund, to secure the costs upon re-instatement.

'Wherefore, Movant prays this Honorable Court re-instate the above entitled cause to the trial docket, and for such other and further orders as to the Court shall seem meet just and proper.'

(F) 'On April 27, 1959, plaintiffs' motion to reinstate this cause on the trial docket was duly presented, heard, argued and submitted to the Court.'

(G) 'On May 8, 1959, plaintiffs' motion to reinstate cause on the trial docket heretofore presented, heard, argued and submitted, was duly sustained and this cuase was duly reinstated upon the docket in an order duly made and entered on said day and date by Honorable Michael J. Scott, then the Presiding Judge in Division No. 1, of the Circuit Court of the City of St. Louis, Missouri, * * *.'

We first consider the contentions made by plaintiffs in which they assert the right of the trial court to set aside the order of dismissal. They contend that the order of dismissal was coram non judice and void; that, being void in its inception, it is subject to collateral attack; and that, therefore, the trial court did not err in setting it aside more than 30 days after rendition. In support of that contention, they cite Hodges v. Brooks, 232 Mo.App. 667, 110 S.W.2d 1130, 1135, and McCarty v. McCarty, Mo., 300 S.W.2d 394. The Hodges case, a bill in equity in which there were numerous defendants, was called for trial. All of the parties were present before the court. Plaintiffs were seeking a continuance upon grounds that the answers of some of the defendants had been filed 'out of time' and that plaintiffs came prepared only for a default proceeding and that plaintiffs needed additional time to prepare their case in rebuttal of the defenses set forth in those answers. When that contention was denied, plaintiffs asked judgment on the pleadings. Apparently, the court deemed the issues not ripe for judgment on the merits and ordered that the case proceed to trial. Plaintiffs announced they were standing on their motion for judgment on the pleadings. The trial court thereupon dismissed the case 'for failure to prosecute.' Following timely motion for new trial and appeal, the appellate court determined that the court erred in dismissing the cause. During the course of the opinion the court, 110 S.W.2d loc. cit. 1135, said: 'We conclude however that under our system of jurisprudence it is error to dismiss a plaintiff's cause of action for failure to prosecute prior to issue joined by answer of all defendants.' (Emphasis supplied.) But that statement was based upon the further showing in the record that due to instifiable mistake at least one of the defendants had not filed timely answer and that the court should have granted a continuance instead of dismissing plaintiffs' action. That case is authority only to the effect that a plaintiff, who, in fact, was prosecuting his action with diligence, should not be nonsuited by the court under the circumstances shown in that case. It is not authority for the proposition that the trial court is without jurisdiction to dismiss, of its own motion, an action for failure to prosecute, even though the defendant is in default. To so hold would deprive the court of its inherent power of dismissing an action that had been unreasonably delayed or abandoned by plaintiff. 27 C.J.S. Dismissal & Nonsuit Sec. 65(2), p. 432. In the McCarty case, supra, it was said that no cause may properly be set down for trial, absent an express agreement, unless it is at issue or the defendant is in default. Dismissal for failure to prosecute is not even mentioned in the case. In the instant case, the defendant was in default. Furthermore, plaintiffs in the instant case were not seeking trial and the case was not set for trial. Rather was it set by the trial court for dismissal. The rulings in the Hodges and McCarty cases do not support plaintiffs' contention that the order dismissing their case was coram non judice and void.

This case was filed in 1953, yet...