State ex rel. Schweitzer v. Greene
| Decision Date | 10 March 1969 |
| Docket Number | No. 53992,53992 |
| Citation | 438 S.W.2d 229 |
| Parties | STATE ex rel. Fred C. SCHWEITZER, M.D., Relator, v. Hon. Douglas W. GREENE, Judge, Respondent. |
| Court | Missouri Supreme Court |
C. Wallace Walter, Harold F. Glass, Mann, Walter, Burkart, Weathers & Schroff, Springfield, for relator.
John B. Newberry, Springfield, for respondent.
In this original proceeding in prohibition relator seeks to prevent the respondent from taking any further action against him in the case of Betty Langley and Robert Langley, Plaintiffs, vs. Marjorie Patterson and Fred C. Schweitzer, Defendants, which is pending in Division II of the Circuit Court of Greene County. Respondent is the circuit judge of that division. On July 8, 1968, we issued our provisional rule upon petition of relator.
The facts are not in dispute. Plaintiffs filed the suit in question on August 4, 1965. It is a malpractice action against relator, a physician, and Majorie Patterson, a nurse. It was alleged that Marjorie, under the direction of relator, negligently made an intermuscular injection into Betty Langley's body, causing injuries. In Count I Betty sought damages in the amount of $100,000, and in Count II Robert sought $25,000 damages for loss of his wife's services and consortium. Marjorie was never served with summons and did not enter her appearance. On September 3, 1965, relator filed a motion to dismiss plaintiffs' petition on the ground that the petition failed to state a claim against him. Relator's motion to dismiss was heard on November 25, 1966, and was sustained, the court ordering that the cause be dismissed as to relator with prejudice to plaintiffs.
On December 27, 1966, plaintiffs filed a first amended petition. Relator filed a motion to dismiss that amended petition (based primarily on the theory of res judicata) and on March 27, 1968, plaintiffs filed a motion seeking a nunc pro tunc order showing that the dismissal was without prejudice. On April 5, 1968, relator's motion to dismiss the amended petition was overruled and plaintiffs' motion for a nunc pro tunc order was sustained 'for reason that the court, in preparing the order of dismissal of 11/25/66 did not intend to bar plaintiffs from filing an amended petition.' Thereafter relator filed another motion to dismiss plaintiffs' first amended petition which was overruled on June 7, 1968.
Relator contends that the dismissal, with prejudice, was an adjudication on the merits as between plaintiffs and relator and that after the lapse of 30 days plaintiffs could not reinstate their claims by filing an amended petition; that the dismissal was final, was res judicata, and that respondent had no authority to modify the record or validate the filing of plaintiffs' amended petition by a nunc pro tunc order.
Respondent concedes that the requirements for a valid nunc pro tunc order were not present in this case. He contends, however, that the order in question was not a final appealable judgment because the case had not been disposed of as to defendant Patterson and hence the court had the power to change the judgment or ruling at any time.
There are no cases cited by either party which involve the precise ultimate question we are presented with. However, in our research we have found a number of cases, hereinafter cited, which we consider decisive.
Relator is correct in his assertion, as provided in Civil Rule 67.03, V.A.M.R., that '(A) dismissal with prejudice operates as an adjudication upon the merits.' There is nothing, however, in that statement which indicates that the order of dismissal is a final judgment or that the doctrine of res judicata applies. It is conceded that the order of dismissal would have been a final appealable judgment if relator had been the only defendant in the case. In that situation the trial court would have lost jurisdiction of the case after the lapse of 30 days. It is equally clear, however, that the order in question was not an appealable judgment. This because of the settled rule that an appealable judgment 'must...
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Paulus v. City of St. Louis
...Co. v. Asher, Mo.App., 440 S.W.2d 181, 182. See, in relation to the power of a trial court over its judgments, State ex rel. Schweitzer v. Greene, Mo. En Banc, 438 S.W.2d 229, 232. Civil Rule 75.01 and former Supreme Court Rule 3.25 incorporated as part of Civil Rule 75.01 (both dealing wit......
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Englezos v. Newspress and Gazette Co.
...set aside orders or judgments until its jurisdiction is extinguished by the judgment becoming final and appealable. State ex rel. Schweitzer v. Greene, 438 S.W.2d 229, 232 (Mo. banc 1969). "Missouri does not follow the doctrine that a motion once ruled on cannot be reconsidered." Around the......
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Transit Casualty Co. v. Intervening Employees
...and after Ainsworth hold that a judgment is not usually final unless it disposes of all issues as to all parties. State ex rel. Schweitzer v. Greene, 438 S.W.2d 229, 231 (Mo. banc 1969); Gibson v. Brewer, 952 S.W.2d 239, 244. Because of its internal inconsistency, and because Ainsworth is i......
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Chubb Group of Ins. Companies v. C.F. Murphy & Associates, Inc.
...or issue or has specifically designated the particular judgment as a final judgment for purposes of appeal. State ex rel. Schweitzer v. Greene, 438 S.W.2d 229 (Mo.1969) (en banc); Dalton v. Borger, 562 S.W.2d 802 (Mo.App.1978). See also Bolin v. Farmers Alliance Mut. Ins. Co., 549 S.W.2d 88......