Scott v. Rees

• Decision Date: 31 July 1923
• Citation: 253 S.W. 998,300 Mo. 123
• Parties: ANNA J. SCOTT, Plaintiff in Error, v. PEARLE E. REES
• Court: Missouri Supreme Court

253 S.W. 998

300 Mo. 123

ANNA J. SCOTT, Plaintiff in Error, v. PEARLE E. REES

Supreme Court of Missouri, First Division

July 31, 1923

Error to Jackson Circuit Court. -- Hon. John A. Austin, Judge.

Reversed and remanded (with directions).

C. W Prince, E. A. Harris and James N. Beery for plaintiff in error.

(1) Where there is no counterclaim nor prayer for affirmative relief, and plaintiff fails to appear to prosecute his action, the court cannot render judgment upon the merits, but must dismiss the cause. Under such circumstances the court is necessarily without jurisdiction to do anything but dismiss the cause. Nordmanser v. Hitchcock, 40 Mo. 179; Wright v. Salisbury, 46 Mo. 26; Hoopes v. Rowley Co., 200 S.W. 443; Lanyon v. Chesney, 209 Mo 1; Grays v. Ward, 234 Mo. 291; Cornell v King, 119 Mo.App. 191; Clowser v. Noland, 72 Mo.App. 217; Hamlin v. Walker, 228 Mo. 611; Atkinson v. Carter, 101 Mo.App. 477. (2) Judgments in any court of record shall not be set aside for irregularities on motion, unless such motion is made within three years after the term at which such judgment is rendered. R. S. 1919, sec. 1552. (3) The non-appearance of plaintiff is equivalent to the expression of an election on her part to take a nonsuit. Clowser v. Noland, 72 Mo.App. 220. (4) An irregularity is the want of adherence to some prescribed rule or mode of proceeding, either in omitting to do something that is necessary for the due and orderly conduct of a suit, or doing it in an unreasonable time or improper manner. Clowser v. Noland, 72 Mo. 220.

Stubbs & Stubbs for defendant in error.

(1) A writ of error will lie only to review a final judgment. Sec. 1485, R. S. 1919; Duncan v. Forgy, 25 Mo.App. 313; Young v. Hudson, 99 Mo. 102; Kroeger v. Dash, 82 Mo.App. 332; Padgett v. Smith, 205 Mo. 124; State ex rel. Iba v. Mossman, 231 Mo. 485; Strother v. Railroad, 268 Mo. 429. (2) A writ of error upon any judgment may only be sued out within one year after the rendering of such judgment. Sec. 1487, R. S. 1919; Warren v. Lead & Zinc Co., 255 Mo. 138. (3) The motion to correct judgment in the instant case is not a final judgment and cannot be reviewed by writ of error. Pickle v. Pickle, 176 Mo.App. 673. (4) A motion to correct a judgment cannot be reviewed except by appeal and then only if the action of the trial court has been preserved in a bill of exceptions. In this case no bill of exceptions was preserved. Corby v. Tracy, 62 Mo. 515; City of St. Louis v. Brooks, 107 Mo. 380; Graft v. Dougherty, 139 Mo.App. 56; Sternberg v. Levy, 159 Mo. 629; Wafford v. Railroad, 195 Mo. 213; Pickle v. Pickle, 176 Mo.App. 677; Brown v. Ins. Co., 228 S.W. 884; Johnson v. Terminal Ry. Co., 232 S.W. 239. (5) The plea of res adjudicata is an affirmative defense. Battie Mfg. Co. v. Geradi, 166 Mo. 142; Nelson v. Jones, 245 Mo. 579. (6) The dismissal by plaintiff in person, in open court of her petition with prejudice, was an open and voluntary renunciation of her claim forever and the judgment of dismissal with prejudice under those circumstances was equivalent to an adjudication upon the merits and operates as a perpetual bar to a future action. United States v. Parker, 120 U.S. 89; Hargis v. Robinson, 70 Kan. 594. (7) The judgment in this case is within the issues, and the facts pleaded in defendant's answer entitled him to affirmative relief, and a judgment granting such relief will be upheld, even though the answer contained no prayer for affirmative relief. 11 Ency. Pl. & Prac. pp. 868, 877, 879; Benedict v. Horner, 13 Wis. 256; Cythe v. La Fontain, 51 Barb. (N. Y.) 186; National Foundry Pipe Co. v. Oconto City, 105 Wis. 48; Durrant v. Essex Co., 7 Wall. 107; Cattle v. Frank, 148 U.S. 603; Armory v. Armory, 26 Wis. 152; Ricketts v. Finkelston, 211 S.W. 391; Crosby v. Farmer's Bank, 107 Mo. 436; Harper v. Kemble, 65 Mo.App. 514; Lumber Co. v. Jones, 220 Mo. 190; McLarty v. Griggs, 222 S.W. 391.

SMALL, C. Lindsay, C., concurs.

OPINION

SMALL, C. --

The error complained of is the refusal of the circuit court to correct a judgment against the plaintiff by making an entry nunc pro tunc setting aside said judgment and entering a proper judgment, as requested by a motion filed by the plaintiff in said cause within three years after the term at which such judgment was rendered. The circuit court overruled said motion on the 28th day of January, 1921. Said motion, omitting its caption, was as follows:

"Motion to correct judgment entry for irregularities appearing on the face of the record proper.

"Annie J. Scott, the plaintiff above named, hereby moves the court for a rule or order setting aside the judgment entry herein and order the entry of a proper judgment dismissing plaintiff's petition and with costs against the plaintiff, for the reasons:

"First: Irregularities appearing upon the face of the record proper.

"Second: The judgment appearing of record is not responsive to the pleadings.

"Third: The plaintiff not appearing, it was error to permit defendants to give evidence.

"Fourth: The court has jurisdiction only to enter a decree dismissing plaintiff's petition for want of prosecution.

"Fifth: Plaintiff suggests the following entry be, by the court ordered and entered nunc pro tunc.

"(Caption omitted).

"It having been made to appear that the judgment heretofore, and on the 25th day of February, 1920, entered here and in this action is erroneous and irregular.

"Now therefore, on motion of H. W. Hawes, of counsel for the plaintiff, it is ordered that the said judgment entry be made and entered, nunc pro tunc.

"(Caption omitted).

"The 28th day of January, 1920, term.

"Now on this day, cause coming on for trial, plaintiff fails to appear and prosecute her cause, defendants appear in person and by attorney.

"Wherefore, it is ordered by the court that the petition heretofore filed herein by the plaintiff be and the same is dismissed and with costs against the plaintiff.

"Dated January 8, 1921."

The record entry made on January 29, 1921, overruling said motion, was as follows:

"Now on this day plaintiff's motion to correct judgment entry for irregularities appearing on the face of the record proper is by the court taken up, fully heard and considered and the same is by the court overruled, to which action and ruling of the court plaintiff excepts."

On December 19, 1921, the plaintiff sued out of this court and this court issued its writ of error to said circuit court in said cause. Afterwards, plaintiff gave due notice of said writ to defendant and duly filed complete transcript of the record in this court. The petition in said cause was filed on the 2nd of January, 1920. It was a suit in equity to redeem certain tracts of land in said Jackson County, possession of which was alleged to be in the defendant, but the equitable title was claimed to be in the plaintiff. The prayer of the petition was for an accounting for the rents and profits, and "that the respective rights and interests in and liens upon said property, legal and equitable of the respective parties to this action may be settled and determined and that the defendant be directed to pay over to the plaintiff any moneys found to remain in his hands upon said accounting, if any, after deducting sufficient to pay said one thousand dollars with the interest thereon and that the defendant be directed to return to the plaintiff the possession of said property and to surrender up to her for cancellation the aforesaid note and trust deed and for such other, different or further relief as to the court, may seem just, equitable, and proper and that such decree with reference to the costs of this action may be made as shall seem right and just."

The answer in said cause was as follows:

"Now comes the defendant, Pearle E. Rees, and for answer to the petition of the said Anna J. Scott, denies each and every allegation in said petition contained.

"For further answer to said petition of said Anna J. Scott, defendant states that the said Anna J. Scott did heretofore in the Circuit Court of Jackson County, Missouri, at Kansas City, in Cause No. 136612, file a petition against this defendant and that on the 26th day of September, 1919, the said Anna J. Scott appeared in open court and in Division 2 of the said circuit court and did then and there dismiss said petition with prejudice to further action against this defendant and that in said petition so filed by said Anna J. Scott against this defendant, the same matters, facts and grounds for equitable relief so plead were then and there adjudicated and now stand as res adjudicata between the said Anna J. Scott and this defendant."

The reply was as follows:

"The plaintiff above named, replying to the answer heretofore filed herein, denies the same and each and every allegation therein contained.

"For a second, separate and further reply to the new matter in said answer contained the plaintiff alleges that she did commence an action in this court, being number 136612.

"That some time thereafter and about September 26, 1919, the parties hereto entered into an amicable settlement of all matters then pending in court and in pursuance thereof this plaintiff did dismiss said action and did offer and tender to the defendant the performance of all of the conditions agreed upon in connection therewith, but that after the plaintiff had so dismissed her said action the defendant wholly failed, neglected and refused to perform any part of the conditions agreed upon by him in consideration of said dismissal and of said agreement or to carry out any part of his agreement.

"Wherefore, the plaintiff asks to be permitted to prosecute her cause of action as set out in her petition filed herein."

The judgment entry therein, of which plain...