State ex rel. Ballew v. Hawkins
| Decision Date | 11 October 1962 |
| Docket Number | No. 8101,8101 |
| Citation | 361 S.W.2d 852 |
| Parties | STATE of Missouri ex rel. James Everett BALLEW, Relator, v. The Honorable James P. HAWKINS, Judge of the Circuit Court of Hickory County, Missouri, and of the 30th Judicial Circuit, Respondent. |
| Court | Missouri Court of Appeals |
Allen, Woolsey & Fisher, Russell G. Clark, Springfield, for relator.
George H. Miller, Sedalia, for respondent.
This is prohibition. We know of no way to convey a better understanding of the mare's nest in which we are entangled than to relate the facts chronologically.
On April 28, 1960, plaintiff Bake filed suit against defendant Ballew (the relator herein) in the Circuit Court of Hickory County. The petition was a suit for damages based upon the negligent killing of the wife of plaintiff on May 15, 1959. Summons on said suit was issued May 7, 1960.
Defendant Ballew lived in Dallas County, which adjoins Hickory County and is in the same circuit. Prior to filing suit plaintiff's counsel inquired of defendant as to his residence and defendant told him (as the fact appears) that he, defendant, lived in Buffalo which is in Dallas County. However, plaintiff had information that every two or three weeks the defendant, who was a resort operator, drove through Hickory County on his way to purchase live minnows in yet another county. Plaintiff's counsel requested the sheriff to get service on Ballew when he came through the county.
There the matter stood. Service was not obtained in the manner plaintiff had hoped, and on May 14, 1960, the plaintiff filed suit on the same cause of action in Dallas County and there obtained service on the defendant. In the Dallas County Case (on June 8), defendant (the relator herein) entered by the filing of motion to dismiss and motion for costs.
In the meantime, the case which had been filed in Hickory County had remained in suspended animation. Time for service of the summons passed and no request was made for a 90-day extension under Civl Rule 54.10(d), V.A.M.R. Finally, on September 12, the respondent judge of Hickory County called his docket and made an order, 'Dismissed by Court,' on his docket sheet. This was sometime in the forenoon. The dismissal so entered was apparently on the court's own motion. It does not appear that counsel were present. Sometime thereafter, possibly during the noon hour of the same day, the sheriff found defendant Ballew on a hunting trip in Hickory County and there served him with the summons which he had been carrying. When court resumed session in the afternoon, his attention was called to this purported service and he made this entry, 'Dismissed by Court.' In other words, he drew two lines through the docket entry which he had made that morning.
On October 3, the Circuit Court of Dallas County overruled defendant's motion for costs and motion to dismiss.
On October, 7, 1960, the defendant went into the Circuit Court of Hickory County and filed his motion to dismiss. This motion stated that it was a special appearance for the purpose of presenting said motion and that defendant did not thereby enter a general appearance. The basis of the motion was that plaintiff had theretofore filed suit and obtained service on the defendant in Dallas County; that the case was at issue and set for trial in Dallas County on December 14, 1960; that the two suits involved the same persons, the same subject matter, and the same issues. So far as we are able to find, this motion was never heard or ruled.
On October 20, 1960, we shift back to Dallas County. According to the docket entry, the plaintiff dismissed his suit 'without prejudice.'
Now back to Hickory County. On January 13, 1961, defendant filed a 'motion by way of special appearance' in which he appeared specially and attempted again to reserve general appearance. The grounds of this motion were (1) no jurisdiction over the defendant because there had been no valid service of process and (2) no jurisdiction because the suit was not commenced within one year and was therefore barred by the statute of limitations.
On April 3, the court overruled this motion to dismiss. The docket entry shows,
On April 12, defendant filed answer which reasserted his contention that the court had no jurisdiction because (1) there had been no service of process and (2) the cause was barred by the statute of limitations. The answer further pleaded to the merits.
On June 13, defendant filed motion for leave to file third party petition. This motion was sustained and summons was ordered.
On October 26, a motion to dismiss the third party petition was sustained.
On November 7, defendant filed motion for summary judgment, asserting as grounds (1) no jurisdiction over the defendant in the Hickory County court because at the time of alleged service of summons there was no suit pending; (2) no jurisdiction over the subject matter because the suit was not commenced within one year and was therefore barred. At the time suit was filed and summons issued, the plaintiff's attorney knew defendant was not a resident of Hickory County but simply relied upon 'happenstance and luck' to obtain service and that such was not a commencement of the action. Also, (3) that no valid service was had because summons had not been served until September 12.
On January 8, 1962, the court overruled the motion for summary judgment, and there is no dispute that respondent will proceed to trial of the Hickory County case unless prohibited.
We will attempt to pull the sticks out of this brush pile one by one. First, what was the effect of the dismissal on September 12 and the subsequent striking of such entry? Relator says that the dismissal finally disposed of the case. Respondent says it was a nullity. Petition had been filed and summons issued but no service had been obtained. No other or alias summons had been requested. The petition was simply lying 'in hibernation' but it showed as a pending case on the court's docket.
It has been repeatedly affirmed that the courts have the inherent power to dismiss because of failure to prosecute with due diligence. Doughty v. Terminal R. Ass'n. of St. Louis, Mo., 291 S.W.2d 119; City of Jefferson v. Capital City Oil Co., Mo.App., 286 S.W.2d 65; Wiles-Chipman Lumber Co. v. Pieper, Mo.App., 176 S.W.2d 50, 52. And this may be done on the court's own motion. Snyder v. Christie, Mo.App., 272 S.W.2d 27; M. Salle for Use and Benefit of Mandel v. Holland Furnace Co., Mo., 337 S.W.2d 87. However, in the absence of notice, the dismissal is without prejudice. 1 In Texas-Western Co. v. Giesecke, Mo.App., 342 S.W.2d 266, the court stated that a dismissal for want of service of process was unjustified and unwarranted, but it did not hold the dismissal to be void. In considering the question, we have determined that the dismissal for want of prosecution was within the power of the court and was not void. It was not a final judgment disposing of the rights of the parties (Harrison v. Weisbrod, Mo.App., 358 S.W.2d 277, 282; Bindley v. Metropolitan Life Ins. Corp., M., 335 S.W.2d 64, 70). Also, it appears to have been on the judge's docket call and naught appears to show that this was not the regular and established practice of which the attorneys should have taken notice. We should not presume lack of jurisdiction. Cusack v. Green, Mo.App., 252 S.W.2d 633, 625; Hendershot v. Minich, Mo., 297 S.W.2d 403, 410; Gomez v. Gomez, Mo., 336 S.W.2d 656(6).
This presents the problem of the later 'entry' marking out the entry of dismissal. Relator says this was a nullity. Respondent takes the position that it was simply the removal of a nullity. We agree that a court has the inherent power to correct clerical errors in its record. Robinson Lumber Co. v. Hazel, Mo.App., 271 S.W.2d 610; Clayton v. Holland Furnace Co., Mo.App., 300 S.W.2d 824; York v. Stigall, 204 Mo. 407, 102 S.W. 987. But the action of the court does not appear to have been unintentional. It was not the result of inadvertence or misprision. The judge meant to make the entry which he did.
A court speaks through its records. State ex rel. Gentry v. Westhues, 315 Mo. 672, 286 S.W. 396(7); In re Wakefield, Mo.App., 274 S.W.2d 345; 365 Mo. 415, 283 S.W.2d 467(3). And since we have said that the entry so drawn through with lines was not an unintentional act or an inadvertence, we must interpret and give some meaning to the marking through of the entry. The court retains control over its judgments for a period of thirty days (Civil Rule 75.01, V.A.M.R.) and, as we view it, had the power, or jurisdiction, to set aside or vacate the nonsuit during that period. Harrison v. Weisbrod, Mo.App., 358 S.W.2d 277; Arkansas-Missouri Power Co. v. Hamlin, Mo.App., 288 S.W.2d 14, 19; Mid-States Equipment Corp. v. Hobart Welders Sales & Service, Mo.App., 233 S.W.2d 757, 758; Duenke v. St. Louis County, 358 Mo. 91, 213 S.W.2d 492. And since the idea in drawing through the previous entry was with a view of doing away with it, the 'entry,' consisting of two parallel lines drawn through the previous entry, should, we believe, be treated as the vacation of the order of dismissal. But under either view of the whole proceeding in respect to this dismissal (and remembering this is prohibition, not appeal), it appears that the parties were back where they started from earlier in the day in so far as the court's records were concerned.
A more serious question is: Was the service of summons (issued on May 7), which was had on the defendant September 12, such as to confer jurisdiction of defendant's person? Civil Rule 54.10, V.A.M.R., provides that the officer--shall make return of service promptly and in any event within the time during which defendant must plead. If process cannot be...
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