Staab v. Thoreson

• Decision Date: 28 March 1979
• Docket Number: No. 10499,10499
• Citation: 579 S.W.2d 414
• Parties: Merlin A. STAAB, Plaintiff-Appellant, v. Theodore THORESON, Bennett Thoreson and Evelyn Thoreson, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 414

579 S.W.2d 414

Merlin A. STAAB, Plaintiff-Appellant, v. Theodore THORESON, Bennett Thoreson and Evelyn Thoreson,

Defendants-Respondents.

No. 10499.

Missouri Court of Appeals, Southern District, En Banc.

March 28, 1979.

Robert P. Baker, Sarcoxie, for plaintiff-appellant.

J. D. Baker, Belisle & Baker, Osceola, for defendants-respondents.

HOGAN, Judge.

Plaintiff Merlin A. Staab declared upon a contract with defendants to: (a) clear the standing timber from 800 acres of defendants' land; (b) clear the scattered timber from 20 acres of the land; (c) construct 4 ponds on the land; and (d) run 1 mile of line fence on defendants' land, "predominantly situated" in St. Clair County. Alleging defendants' promise to pay the sum of $21,500 and to deliver a tractor worth $23,000 as consideration for performance, plaintiff admitted partial payment in the amount of $16,600, but averred breach of the contract by prevention of performance and damages in the amount of $39,610. The action was commenced on September 7, 1973.

Defendants filed an answer and counterclaim. Defendant Evelyn Thoreson denied being a party to the contract alleged in the petition; defendants Theodore and Bennett J. Thoreson denied each and every allegation contained in each and every paragraph of plaintiff's petition. By way of affirmative counterclaim, defendants averred that on December 28, 1972, they contracted with plaintiff to: (a) construct 4 ponds on their land; (b) clear scattered timber from 20 acres of their land; (c) clear the standing timber and brush from 1 mile of line fence; and (d) clear the standing timber and brush from "some 800" acres of land owned by defendants. In consideration of plaintiff's service, defendants agreed to pay plaintiff the sum of $21,500 and to deliver one "International Harvester Company TD 20B" of an agreed value of $10,500. Thereafter, defendants alleged, plaintiff began clearing the land and continued to do so intermittently until May 30, 1973. On June 15, 1973, so defendants alleged, the parties entered into a "supplemental" agreement "amending and superseding" the original agreement. The second contract called for plaintiff to: (a) clear all timber from defendants' 867-acre tract; (b) pile all the felled timber into manageable windrows so it could be burned; (c) clear the timber and brush from 1 mile of line fence; and (d) clear the scattered timber on 20 acres of defendants' land. Defendants averred that the consideration to be paid for plaintiff's services was $22,980 and delivery of a tractor of the agreed value of $10,500. Defendants further pleaded partial payment in the amount of $16,600, breach of the contract by plaintiff, and averred consequential damages in the amount of $35,804. Plaintiff filed a detailed reply, denying, among other things, the existence of any "supplemental" or "superseding" contract. By November 3, 1973, the cause was at issue.

On May 31, 1974, defendants applied for a change of judge pursuant to Rule 51.05, V.A.M.R., ¹ and a special judge was assigned to hear the case. The cause was thereafter set for trial by jury on June 11, 1975. The parties appeared. Plaintiff moved the court for a continuance; defendants moved to amend their counterclaim. Both motions were granted and the cause was set over for trial on December 19 and 20, 1975. On December 10, plaintiff filed another application for a continuance, and on December 16, mailed a notice of dismissal without prejudice to the clerk of the trial court. On December 19, defendants appeared with counsel. Neither the plaintiff nor his counsel appeared. The trial judge noted plaintiff's dismissal without prejudice, and asked defendants if they were ready to proceed. Defendants announced ready and presented proof of their claim, including damages, by four witnesses. At the close of the trial, the court made the following docket entry:

"Motion for continuance overruled. Plaintiff files dismissal without prejudice. Defendants announce ready for trial on counterclaim. Trial by Court. Judgment for Defendants and against the plaintiff for $38,126.75 as per formal decree filed herewith.

A formal judgment was prepared and filed as of the date of rendition, which, contrary to plaintiff's assertion, was entirely proper procedure. Sears v. Norman, 543 S.W.2d 300, 304(7) (Mo.App.1976). On January 15, 1976, 27 days after the judgment was rendered, plaintiff filed a pleading styled "Motion to Set Aside Judgment" and on January 23, he appealed to this court. After the transcript on appeal was filed, it was routinely examined and thereafter, the court's attention was called to the want of a ruling on plaintiff's after-trial motion.

The motion, sworn to by counsel, is very long; some of the allegations are appropriate to a motion for new trial, but inasmuch as it was filed well after the 15-day period prescribed by Rule 78.02 and there is no allegation that plaintiff was not timely notified of the entry of judgment as required by Rule 74.78, plaintiff's motion was not regarded as a motion for new trial. The motion does allege that 13 days prior to the date of trial, plaintiff's counsel was advised that defendants would try the case to the court. Counsel agreed, but wrote the special judge that plaintiff would need more time and would ask for a continuance when the case was called on December 19. Plaintiff's counsel so advised defendants' attorneys. A written motion for continuance was prepared and sent to the clerk of the circuit court. Four days prior to trial, the defendants' attorneys advised plaintiff's counsel they would insist on going to trial. Plaintiff's attorney thereupon complained to the trial court. The trial court advised plaintiff's counsel that plaintiff had no alternative except to dismiss the cause without prejudice and refile the action. The trial court said "Ray (defendants' attorney) says he will dismiss if you do." Nevertheless, plaintiff's attorney was advised by telephone the day before trial that defendants' attorneys had meant they would dismiss the counterclaim with prejudice but would not be willing to dismiss without prejudice. Plaintiff's counsel was advised by the trial judge that he "didn't know" if defendants would appear and ask for judgment on their counterclaim.

The allegations just recited suggested to this court that plaintiff's after-trial motion should be regarded as a motion for equitable relief. The equitable grounds for relief from a default judgment have never been very clearly defined, but it is generally recognized that a party who fails to appear may set up mistake, excusable negligence, surprise or accident as grounds for equitable relief, and he may do so by after-trial motion. J. R. Watkins Company v. Hubbard, 343 S.W.2d 189 (Mo.App.1961); Comment, Procedure Setting Aside Final Judgments in Missouri, 28 Mo.L.Rev. 281, 299-305 (1963), and see generally Restatement, Judgments § 120 and comments, pp. 584-585 (1942). ² It was therefore decided that the appeal was premature and should be dismissed, for whatever the precise nature of the plaintiff's after-trial motion, Proof of the allegations was necessary. Reger v. Reger, 316 Mo. 1310, 1327, 293 S.W. 414, 421(5) (1927); Coleman v. Coleman, 277 S.W.2d 866, 869(2) (Mo.App.1955). Cf. State ex rel. County of Mississippi v. Stallings, 434 S.W.2d 588, 591-592(5, 6) (Mo.1968). Motions and other pleadings do not prove themselves. Proof is required and the burden of proof rests upon the party filing the motion. Williams v. Williams, 497 S.W.2d 415, 417(2) (Mo.App.1973), and see Hamilton v. Linn, 355 Mo. 1178, 1181, 200 S.W.2d 69, 71(7) (1947). So, with a timely motion pending before the trial court, there was no "final and appealable" judgment, for with certain exceptions not applicable to this case, a judgment is not "final and appealable" until the trial court has exhausted its jurisdiction and the issues decided are beyond its control. Pendleton v. Pendleton, 532 S.W.2d 905, 906(2) (Mo.App.1976); State ex rel. Mary Frances Realty Co. v. Homer, 150 Mo.App. 325, 330, 130 S.W. 510, 512(5) (1910), and see State ex rel. Chicago B. & Q. R. Co., 189 Mo. 197, 216, 88 S.W. 28, 34 (1905); Wolff v. Vette, 17 Mo.App. 36, 37 (1885). Further, it was clear that the plaintiff was obliged to pursue his appeal from the "default" judgment or to present evidence in support of his after-trial motion and then appeal, one or the other. He could not, as the expression runs, "blow hot And cold" in this court. The terms "waiver," "abandonment" and "estoppel" are used rather loosely to describe this sort of inconsistency but there is considerable authority in support of the proposition that a party against whom a judgment has been rendered and who brings another action upon the judgment which is clearly inconsistent with the right of appeal is estopped to appeal. Sharp v. Interstate Motor Freight Systems, 442 S.W.2d 939, 946(8) (Mo.banc 1969); Sansone v. American Mut. Indemnity Assn. of Missouri, 20 S.W.2d 293 (Mo.App.1929); Sullivan v. Cloud, 62 Ohio App. 462, 24 N.E.2d 625, 626(3) (1939); Annot. 115 A.L.R. 121 (1938). Plaintiff could regard the judgment complained of as valid but erroneous, or as a void judgment subject to vacation because it was procured by some species of equitable fraud. He could not claim it was both valid and void. With these considerations in mind, the first appeal was dismissed in a short per curiam opinion. Staab v. Thoreson, 536 S.W.2d 537 (Mo.App.1976).

Thereafter defendants, having obtained new counsel, gave notice to the plaintiff that they would call up the "Motion to Set Aside Judgment" on Friday, September 24, 1976. There is no contention that this notice was not received by counsel. The supplemental transcript filed here reflects that the cause was duly called, that defendants appeared by their counsel, but neither plaintiff nor his counsel appeared. The motion was denied, and the amount of an appeal bond was fixed. Thereafter ...