Southwest Forest Industries, Inc. v. Loehr Employment Service of Kansas City, Inc., KCD

• Decision Date: 01 November 1976
• Docket Number: No. KCD,KCD
• Citation: 543 S.W.2d 322
• Parties: SOUTHWEST FOREST INDUSTRIES, INC., Plaintiff-Respondent, v. LOEHR EMPLOYMENT SERVICE OF KANSAS CITY, INC., Defendant-Appellant. 28141.
• Court: Missouri Court of Appeals

Page 322

543 S.W.2d 322

SOUTHWEST FOREST INDUSTRIES, INC., Plaintiff-Respondent, v. LOEHR EMPLOYMENT SERVICE OF KANSAS CITY, INC., Defendant-Appellant.

No. KCD 28141.

Missouri Court of Appeals, Kansas City District.

Nov. 1, 1976.

Arnold L. Kort, Kansas City, for defendant-appellant.

Charles L. House, C. W. Crumpecker, Jr., Lawrence M. Maher, Kansas City, for plaintiff-respondent.

Before DIXON, P.J., PRITCHARD, C.J., and WASSERSTROM, J.

DIXON, Presiding Judge.

This appeal challenges the order of the circuit court dismissing defendant's appeal of a magistrate court judgment for failure to answer interrogatories filed in the circuit court by the plaintiff.

The procedural background is both convoluted and bizarre but must be explicated to clarify the issues to be resolved.

Plaintiff recovered a judgment in the Magistrate Court for $720 on June 19, 1973. Defendant filed an appeal. After the appeal was lodged in the circuit court, and on March 28, 1975, plaintiff filed interrogatories. These interrogatories were apparently filed in anticipation of a trial setting of April 21. April 2nd the trial court sustained defendant's motion for a continuance and reset the trial for May 27, 1975. On April 15, defendant objected to the interrogatories on the ground that they were not authorized in a magistrate court appeal.

From this point, the record, which is comprised only of the pleadings and orders, becomes very confused.

On May 8th, defendant moved for a continuance from the May 27th setting. This was denied May 9th, and at the same time, the objections to interrogatories were overruled. Defendant does not contend it was not notified of these rulings. That it was is demonstrated by the fact that on May 14th, it filed again for a continuance of the trial setting and for additional time to answer interrogatories. The trial court sustained both motions continuing the trial setting indefinitely and extending the time for answer to interrogatories to May 28th.

The plaintiff, meanwhile, apparently unaware of the court's order extending the time for answer to interrogatories to May 28, filed a motion for default on May 29, which alleged a default in answers premised on the answers being due May 16. Defendant does not claim it was not served with this motion.

Nothing further is shown in the record until June 10, when the court dismissed the defendant's appeal for failure to answer the interrogatories. Defendant received notice of this judgment, as well as notice of the trial court's order denying defendant's motion to set aside default, which was entered July 3, 1975.

Defendant asserts in two separate points error in the trial court's order of dismissal.

The two points may be amalgamated under a single discussion. Defendant first complains of the trial court's entry of default and second of the refusal to set it aside both on the ground that defendant had no notice of the extension of time to it for answering the interrogatories.

In both instances, defendant relies on Rule 74.78. Defendant insists that under the language of this rule, the trial court's 'order' extending the time for filing answers to interrogatories was such an order as is contemplated by Rule 74.78. A literal reading of the rule might support that argument, the rule being:

'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 of 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.' (Emphasis supplied.)

However, as the plaintiff notes, there is a special rule relating to extensions of time and notice of such extensions. Rule 44.01(b) is as follows:

'When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) upon notice and motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect; but it may not extend the time for taking any action under Rules 52.12, 72.02, 73.01, 75.01, 78.02, 81.04 and 81.07 or for commencing civil action.'

A judgment is the final determination of the rights of the parties in an action. Rule 74.01 and § 511.020 RSMo 1969. Every direction of the court or a judge, made or entered in writing and not included in a judgment, is denominated an order, and an application for an order is a motion. Rule 74.02 and § 506.050 RSMo 1969.

Certainly the language of Rule 74.78 evidences a requirement of notice to every p...