Scott v. Rees

• Decision Date: 08 June 1923
• Docket Number: No. 23587.,23587.
• Citation: 300 Mo. 123,253 S.W. 998
• Parties: SCOTT v. REES
• Court: Missouri Supreme Court

253 S.W. 998

300 Mo. 123

SCOTT v. REES

No. 23587.

Supreme Court of Missouri, Division No. 1.

June 8, 1923.

Rehearing Denied July 31, 1923.

Error to Circuit Court, Jackson County; James H. Austin, Judge.

Action by Anna J. Scott against Pearle E. Rees. From an order overruling a motion to correct the judgment entry, plaintiff brings error. Reversed and remanded, with directions.

Prince, Harris & Beery, of Kansas City, for plaintiff in error.

Stubbs & Stubbs, of Kansas City, for defendant in error.

SMALL, C. I.

Writ of error to the circuit court of Jackson county. The error complained of is the refusal of said circuit court to correct a judgment against the plaintiff by making an entry nunc pro tune 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 J. W. Hawes of counsel for the plaintiff it is ordered that the said judgment entry be made and entered, nunc pro tune.'

"[Caption omitted.]

"The thirty-eighth 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
                                   "J. W. Howes
                                       "Attorney for Plaintiff."
                

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 2d 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 pay said $1,000 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.             James W. Hawes
                                    "Attorney for Plaintiff."
                

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 pleaded were then and there adjudicated and now stand as res adjudicate between the said Anna 3. Scott and this defendant.

                                "Jay L. Oldham
                                "L. D. Tolle
                                    "Attorneys for 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 No. 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 plaintiff error complains and moved to set aside and correct was as follows:

"Now on this day this cause being regularly called for trial comes defendant in person and by his attorney, and the plaintiff failing to appear either in person or by attorney, this cause is submitted to the court upon the pleadings and evidence introduced on behalf of said defendant, Pearle E. Rees, and the court finds the issues involved herein in favor of the defendant.

"It is therefore ordered, adjudged, and decreed by the court that said plaintiff Annie J. Scott, take nothing by her action in this behalf and that said defendant, Pearle E. Rees, go hence discharged without day and recover of said plaintiff her costs and charges herein laid out and expended and have therefor execution."

II. It is well settled, that, prior to the Revision of 1889, when section 8172, now section 1304, R. S. 1919, was added, even when the defendant answered and pleaded a set-off or counterclaim, defendant could not, if plaintiff failed to appear at the trial or take a nonsuit, take a verdict and judgment against the plaintiff on his set-off or counterclaim. The only judgment the court could render in such case was a judgment dismissing plaintiff's petition and for costs against him. Lanyon v. Chesney, 209 Mo. 7, 106 S. W. 522; Nordmanser v. Hitchcock, 40 Mo. 178; Fink v. Bruihi, 47 Mo. 173; Martin v. McLean, 49 Mo. 361; Kelerher & Little v. Henderson, 203 Mo. 516, 101 S. W. 1083. But since the passage of said amendment in 1889, the dismissal by the plaintiff of his case would not prevent the defendant from obtaining, judgment in his favor against the plaintiff on the counterclaim or set-off pleaded in his answer. Lanyon v. Chesney, supra; v. Carter, 157 Mo. 565, 57 S. W. 1095. But, unless the answer does plead a set-off or counterclaim, the plaintiff has a right to dismiss his case at any time before judgment, or, if the plaintiff fails to appear at the trial at all, the court has no power, when the case is called for trial, to hear the case on its merits, and render judgment against the plaintiff, but it can only dismiss the plaintiff's petition and render judgment for costs against him. Authorities, supra; also, Gray v. Ward, 234 Mo. 291, 136 S. W. 405; Hoopes v. Rowley Co. (Mo. App.) 200 S. W. 443; Smith v. Hurt (Mo. App.) 203 S. W. 625; Hamlin v. Walker, 228 Mo. 611, 128 S. W. 946; Atkinson v. Carter, 101 Mo. App. 477, 74 S. W. 502; Clowser v. Noland, 72 Mo. App. 217. So that, unless the defendant's answer contained a set-off or counterclaim, the judgment herein rendered against the plaintiff or the merits was rendered without authority.

III. In this case, the answer asked for no affirmative relief, nor did it set up anything showing that defendant had a separate cause of action against the plaintiff. The answer simply contained a general denial and a plea of former adjudication, and it was merely pleaded as a defense. It was neither a counterclaim nor a set-off.

In Lanyon v. Chesney, 209 Mo. loc. cit. 9, 106 S. W. 522, loc. cit. 524, it is said:

"Matter which is merely pleaded as a defense, or which shows that plaintiff never had a cause of action, cannot be said to be either a set-off or a counterclaim....