State ex rel. M. J. Gorzik Corp. v. Mosman, 22612

• Decision Date: 07 October 1957
• Docket Number: No. 22612,22612
• Citation: 305 S.W.2d 733
• Parties: STATE ex rel. The M. J. GORZIK CORPORATION, Appellant, v. Burroughs N. MOSMAN, J., Respondent.
• Court: Missouri Court of Appeals

Page 733

305 S.W.2d 733

STATE ex rel. The M. J. GORZIK CORPORATION, Appellant, v. Burroughs N. MOSMAN, J., Respondent.

No. 22612.

Kansas City Court of Appeals, Missouri.

Oct. 7, 1957.

Charno & Charno, Kansas City, for appellant.

Al Lebrecht, Rodger Walsh, Albert Thomson, Davis, Thomson, Van Dyke & Fairchild, Kansas City, for respondent.

SPERRY, Commissioner.

Relator, The M. J. Gorzik Corporation, obtained a preliminary writ in prohibition, against respondent, Burroughs N. Mosman, Magistrate 4th District, Jackson County. Upon trial the writ was quashed and the petition dismissed. Relator appeals.

One Bobecker sued relator in respondent's court. Process issued and the cause was for trial September 7, 1955, but was duly continued, from time to time, until January 9, 1956, when the parties appeared and a trial was had. After the close of evidence respondent requested the parties to file briefs and set the case for final decision and judgment February 6, 1956. Briefs were filed prior to January 31. No judgment was rendered or entered on February 6, nor was there made or entered any order of continuance touching the cause at that time. No further order or entry was made until May 15, 1956, when respondent entered judgment in favor of Bobecker and against relator, neither party being present in court at the time, neither having received notice that judgment would be entered on said date. Neither party ever received notice that judgment had been entered but, when that fact was discovered by relator, on September 29, 1956, counsel for the parties conferred, together with the court, who advised that no further proceedings could be allowed and no appeal entered. This action, to prohibit respondent from issuing or allowing execution on the judgment, followed.

Whether or not the judgment should be affirmed depends on the construction to be placed on Section 517.710 RSMo 1949, V.A.M.S. (originally Section 10, Article VI, R.S.Mo. 1835) and Section 517.900 RSMo 1949, V.A.M.S. (originally Section 18, Article VII, R.S.Mo. 1854-55). The language of the above sections, in the 1949 revision, is not materially different from that appearing in the respective original sections.

When called upon to construe a statute, the court's prime duty is to give effect to the legislative intent as expressed in the statute. To this end we are guided by certain well established and recognized rules, among which are the following: (a) The object sought to be obtained and the evil sought to be remedied by the Legislature; (b) the legislative purpose should be assumed to be a reasonable one; (c) laws are presumed to have been passed with a view to the welfare of the community; (d) it was intended to pass an effective law, not an ineffective or insufficient one; (e) it was intended to make some change in the existing law. Warrington v. Bobb, Mo.App., 56 S.W.2d 835, 837; 82 C.J.S. Statutes Sec. 316, pp. 544, 545.

Section 517.710, supra, provided that, in cases such as this, the magistrate 'shall render judgment and enter the same in his record within three days after the cause shall have been submitted to him for his final decision.' Here, the cause was submitted for final decision February 6, 1956, but no judgment entry, or any other entry, was made until May 15, 1956. The record also fails to show that any judgment was announced or rendered prior to the making of the entry.

That section came into law in 1835 and, until 1855, remained unmodified by any other enactment. However, in 1855, what is now Section 517.900 was enacted. It provides, in effect as follows: 'No judgment rendered by any magistrate shall be deemed invalid * * * by reason of the neglect or failure of the magistrate to enter the same within the time prescribed, or by reason of any informality in entering or giving such judgment or other entry required to be made in the record, or for any other default or negligence of the magistrate or sheriff, by which neither party shall have been prejudiced.' (Emphasis ours.)

The very fact that the legislature, in 1855, enacted Section 517.900 into law, indicates that that body intended to make some change in the law as it existed at that time. It is presumed that it intended to pass an effective law. The only effect it could have would be to modify the law as it existed under the provisions of Section 517.710, supra.

What change in the law was intended to be, and was effected by enactment of this section?

Section 517.710 provides, briefly, that a magistrate 'shall render judgment and enter the same in his record within three days after the cause shall have been submitted to him for his final decision.' Thus, the magistrate is required to perform two separate acts, within three days after submission of the cause. 'Rendition' is a judicial act; entering is a ministerial act. Black's Law Dictionary, Third Edition, page 1528: The judgment is rendered when it is ordered by the court; it is entered when it is spread on the docket. McLaughlin v. Doherty, 54 Cal. 519.

Both acts were required to be done within three days and no provision was made tending to excuse non-compliance therewith, until enactment of Section 517.900.

The St. Louis Court of Appeals, in Hodgson v. Bank-House, 9 Mo.App. 24, indicated that a failure to render judgment within three days after submission would work a discontinuance of the action, citing Watson v. Davis, 19 Wend., N.Y., 371, where it was said:

'It was the duty of the justice to render judgment and enter the same in his docket, within four days...