State ex rel. Berbiglia, Inc. v. Randall
| Decision Date | 08 January 1968 |
| Docket Number | No. 52877,52877 |
| Citation | 423 S.W.2d 765 |
| Parties | STATE ex rel. BERBIGLIA, INC., a Corporation, Relator, v. Honorable Alvin C. RANDALL, Judge, Sixteenth Judicial Circuit, Respondent. |
| Court | Missouri Supreme Court |
George L. Gisler, Kansas City, for relator; Gisler, Howell & Simms, Kansas City, of counsel.
James, McFarland & Trimble, by Walter R. James, North Kansas City, for respondent.
This is an original proceeding in prohibition. Relator seeks to prohibit respondent from taking any action to enforce a judgment entered January 17, 1967, alleged to be void because it altered or changed a final judgment entered August 4, 1966, from which an appeal had been taken and was pending in this court. The provisional rule was issued March 14, 1967, and we determine that it should be made absolute.
It appears from the allegations of the petition for the writ, respondent's return, and relator's reply that the facts are not controverted. The petition alleges that in December, 1963, relator, as plaintiff, filed a suit in the circuit court of Jackson county against William T. and Elizabeth E. Poteet (hereinafter referred to as defendants) to cancel a fifteen-year lease dated November 7, 1961 (and for damages), wherein defendants were lessors and relator was lessee; that defendants filed an answer in the nature of a general denial and a counterclaim praying that the court declare the lease valid and binding upon relator; that City Bond and Mortgage Company (hereinafter referred to as intervenor), owner of an assignment of defendants' interest in the lease made to secure a $75,000 loan for construction of the building leased to relator, was permitted to intervene as a party defendant and filed answer.
The petition for the writ further alleges that the suit was tried before the court in July, 1966; that on August 4, 1966, respondent made and filed his findings and conclusions, and entered a decree in favor of relator. The decree is as follows:
'It is the judgment of the Court that plaintiff has been deprived of the beneficial use of the leased premises described in Defendants' Exhibit No. 1, the lease between plaintiff and defendants, and that it has been so deprived of the beneficial use by the defendants, or at their instance or consent. Thirty days is a reasonable time for plaintiff to vacate the premises. Therefore, the Court declares that the lease should be and is voided from and after 30 days from this date.
'The costs of this action are assessed against defendants.' The court found against relator on the issue of damages.
The petition for the writ further alleges that on August 18, defendants and intervenor filed separate motions for new trial; that the motions, not having been passed on within 90 days, were overruled by operation of law on November 16. Civil Rule 78.04; § 510.360. 1 The petition further alleges that defendants did not appeal from the judgment entered August 4, but that on November 25, intervenor appealed to this court. 2
The petition further alleges that on December 14, 1966, after the August 4, judgment had become final as to defendants and while intervenor's appeal therefrom was pending, defendants filed a motion to set aside the August 4, findings and judgment and to dismiss plaintiff's (relator's) petition on the grounds that relator had failed to vacate the premises within 30 days after August 4, and had thereby waived its right to have the lease declared void; that over relator's objection, respondent, on January 17, 1967, without setting aside the August 4, findings and judgment entered an order (hereinafter referred to as an order or the second judgment) as follows:
'It is the judgment of the Court that plaintiff has waived its right to abandon the leased premises and avoid further obligations under its lease by reason of the constructive eviction found by this Court to exist in its order of 8--4--
The petition further alleges that relator filed a motion to reconsider and set aside the second judgment on the same grounds stated in its objection made before and during the hearing on defendants' December 14, motion: that is, that the August 4, judgment was final as to defendants, that intervenor's appeal therefrom was pending, and, therefore, the court was without jurisdiction to enter the second judgment; that relator's motion was heard and respondent, by letters to counsel, advised that it would be overruled and the second judgment permitted to stand, unless this court should direct otherwise. The petition further alleges that relator has, since the judgment of August 4, remained in possession of the premises 3 and performed all of its obligations under the lease '* * * so as to maintain the status quo of the parties * * *' pending disposition of intervenor's appeal, and a definitive final determination resolving their respective obligations and rights under the August 4, and January 17, judgments; that defendants have instituted on unlawful detainer action against relator based on the void second judgment; that relator will be subjected to a multiplicity of actions and counter-actions 4 by defendants, and will suffer irreparable injury, unless this court by its writ prohibits respondent from taking any action in the premises, except to rescind the second judgment; and, that relator has no adequate remedy at law.
By his return respondent admits: (1) that the two judgments above quoted were entered on the dates mentioned; (2) that motions for new trial were filed by defendants and intervenor and overruled by operation of law on the date above stated; (3) that intervenor appealed to this court from the August 4, judgment but that defendants did not appealed; and (4) that defendants on December 14, filed a motion to set aside the first judgment, and that relator, after January 17, filed a motion to set aside the second judgment. Respondent denied generally all other allegations of the petition, and alleged: (1) that the judgment entered August 4, did not dispose of all issues and substantive rights between the parties, and was conditional in that the relief it granted relator was subject to the condition that relator make restitution of the leased premises to defendants within thirty days thereafter; (2) that relator had admitted it had not vacated the premises within thirty days; (3) that the judgment entered August 4, was not final but was interlocutory; and, (4) that he had jurisdiction to enter the judgment of January 17, and thereby settle and finally dispose of the substantive rights of and equities between the parties.
The question whether a particular judgment, or decree in equity, is final or interlocutory most frequently arises as a question of appealability, and most of the cases cited in the briefs and those found by us involve that question. However, we are not concerned here with that particular question. We are concerned primarily with two other aspects of the finality of a judgment or decree. We note that a judgment may be characterized as final in one sense or for some purposes and not in another sense or for other purposes; that a judgment may be regarded as in suspension for some purposes and not for others. 5 For example, a judgment or decree final for the purposes of appeal is most certainly not final in the sense that it is conclusive on the parties until the losing party has failed to appeal within the time allowed by law, or, having appealed, until the appeal is determined; and, although it is not final in that sense because an appeal is pending, yet during that period it may be final in the sense that the court from which the appeal was taken has exhausted its authority and is without jurisdiction to change, vacate or modify the judgment, or...
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State ex rel. T. J. H. v. Bills, KCD
... ... State ex rel. Berbiglia, Inc. v. Randall, 423 S.W.2d 765, 770(8--10) (Mo. banc 1968); Rule 84.22. Where there is an entire ... ...
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...24, 2015 judgment on attorneys' fees. Because “[t]here cannot be two final judgments in the same action,” State ex rel. Berbiglia, Inc. v. Randall, 423 S.W.2d 765, 769 (Mo. 1968) (quoting Irwin v. Burgan, 325 Mo. 309, 28 S.W.2d 1017, 1021 (1930) ), we must discern what rulings of the trial ......
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...to correct, amend or modify the judgment was lost. Civil Rules 75.01, 78.02 and 82.05(a), V.A.M.R.; State ex rel. Berbiglia, Inc. v. Randall, Mo. (banc), 423 S.W.2d 765, 769(4); State ex rel. County of Mississippi v. Stallings, Mo., 434 S.W.2d 588, 591(4); State ex rel. Simons v. Wilcox, Mo......
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