Springfield Gas & Electric Co. v. Fraternity Bldg. Co.

• Decision Date: 12 May 1924
• Docket Number: No. 3197.,3197.
• Citation: 264 S.W. 429
• Court: Missouri Court of Appeals
• Parties: SPRINGFIELD GAS & ELECTRIC CO. v. FRATERNITY BLDG. CO. et al.

264 S.W. 429

SPRINGFIELD GAS & ELECTRIC CO. v. FRATERNITY BLDG. CO. et al.

No. 3197.

Springfield Court of Appeals. Missouri.

May 12, 1924.

Rehearing Denied July 22, 1924.

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

Action by the Springfield Gas & Electric Company, a corporation, against the Fraternity Building Company, a corporation, and another, defendants interposing a counterclaim. Judgment was entered for plaintiff, but, on defendants' motion, was vacated, and from the order vacating the judgment plaintiff appeals. Affirmed.

Frank B. Williams, of Springfield, for appellant.

G. M. Sebree, of Springfield, for respondents.

COX, P. J.

The plaintiff filed suit against defendants upon a promissory note. Defendants answered and admitted the debt upon the note as alleged, and then set up a counterclaim for overcharges for steam heat furnished by plaintiff to the Fraternity Building in Springfield. The petition, answer, and counterclaim were filed at the January, 1921, term of court. The cause was continued to the May term. At the May term and on the day the case was set for trial judgment was rendered for plaintiff on its petition, which judgment is as follows:

"Now, on this day comes the plaintiff, by its attorney, but the defendants, although duly summoned by personal summons as required by law, and having filed herein their answer to plaintiff's petition herein, come not to further plead, whereupon plaintiff announces ready for trial, and, a jury being waived, submits its cause to the court for hearing, and the court proceeds to hear the evidence on the part of plaintiff, and all and singular, the premises being seen and heard, the court finds in favor of the plaintiff, and, this being an action upon a certain promissory note whereby plaintiff's demand is ascertained, the court doth assess the amount due and owing from the defendant to the plaintiff on the note sued on at the sum of $509 as debt and damages.

"It is therefore considered, adjudged, and ordered by the court that plaintiff, the Spring field Gas & Electric Company, have and recover of and from the defendants, the Fraternity Building Company and John T. Woodruff, the sum of $503, as debt and damages aforesaid assessed by the court, together with all costs in this suit laid out and expended, for which execution may issue."

As we construe this judgment, it did not dispose of the counterclaim.

The defendants did not appear at that term. At the September term, 1921, the case was not docketed, and no entries of record made in relation to it. At the January, 1922, term of court defendants filed a motion to set aside the judgment rendered in favor of plaintiff at the May term, 1921 for irregularity appearing on the face of the record. The irregularity relied upon was the fact that, when judgment was entered for plaintiff, no disposition was made of defendants' counterclaim. The motion was sustained as shown by the following order:

"Now on this day comes on for hearing the motion of defendants praying the court to vacate the judgment heretofore rendered in this cause in favor of the plaintiff, to wit, on June 7, 1921, and the same being seen, heard, and understood is by the court sustained, and the judgment opened and vacated hi order that the defendant may prosecute his counterclaim herein filed, the same never having been disposed of, and the said judgment for that reason being irregular."

From that order of the court vacating the judgment plaintiff appealed.

Plaintiff's action was founded upon a promissory note executed by defendants, and they, in their answer, admitted the indebtedness as alleged. It was not necessary for Plaintiff to introduce any evidence at the trial, but as to the cause of action stated in the petition a judgment in plaintiff's favor could have been rendered on the pleadings. The case was regularly set for trial, and on that day judgment in plaintiff's favor on the cause of action stated in its petition was rendered. The defendant did not appear on the trial day, and when the court rendered judgment for plaintiff on its cause of action it should have dismissed the counterclaim for failure to prosecute. Kelerher & Little v. Henderson, 203 Mo. 498, 516, 101 S. W. 1083.

Plaintiff, in order to secure a final judgment in its favor at that time, should have seen to it that the counterclaim was dismissed. This, however, was not done. The case then stood with a judgment in plaintiff's favor on its cause of action, and the counterclaim of defendants still pending. So matters remained at the end of that term, and continued in the same state until the motion of defendants filed at a subsequent term to vacate the judgment in plaintiff's favor was sustained by the court.

It is clear to us that the plaintiff was entitled to a trial on the day the case was set for trial. The plaintiff, however, when proceeding to trial, should have borne in mind the well-settled rule of law and practice in this state that there can be but one final judgment in a case, and, further, that, when the judgment is...