State ex rel. Wendling v. Arnold
| Decision Date | 06 February 1917 |
| Citation | 193 S.W. 292,197 Mo.App. 1 |
| Parties | STATE OF MISSOURI ex rel. GEORGE R. WENDLING, JR., Relator, v. GLENDY B. ARNOLD, Judge, Respondent |
| Court | Missouri Court of Appeals |
PEREMPTORY WRIT ISSUED.
Robt. L. McLaran and E. A. B. Garesche for relator.
(1) The power of a court of general jurisdiction to set aside its judgment during the same term on motion of either party, or on its own motion, must not be arbitrarily or oppressively exercised and is subject to review by the appellate courts. Nelson v. Ghiselin, 17 Mo.App. 663, 666; Morris v. Morris, 60 Mo.App. 86-88; Scott v. Smith, 133 Mo. 618-623. (2) Trial courts have no power to vacate their judgments on motion of either party or on their own motion, even during the same term, unless some legal ground for so doing is shown. Morris v. Morris, 60 Mo.App 88; Scales v. Scales, 65 Mo.App. 292-294. (3) The court's action in attempting to set aside its final judgment of August 21, 1916, for the sole purpose of allowing plaintiffs to take a nonsuit, was an arbitrary and oppressive exercise, and a flagrant abuse of its discretion, and absolutely unwarranted by any law of this State. Lawyers' Co-op. Pub. Co. v. Gordon, 173 Mo. 139. (4) A plaintiff shall be allowed to dismiss his suit or take a non-suit at any time before the same is finally submitted to the jury, or to the court sitting as a jury, or to the court and not afterwards. Sec. 1980, R. S. 1909; Lawyers Co-op Pub. Co. v. Gordon, 173 Mo. 139; McLean v. Stuve, 15 Mo.App. 317; Bank v. Butler, 163 Mo.App. 380; Brewing Co. v. Smith, 59 Mo.App. 476. (5) The law will not permit one to do indirectly, or in a circle, what he cannot do directly, or in a straight line. Euneau v. Rieger, 105 Mo. 659; Darling v. Potts, 118 Mo. 506. (6) Upon the refusal of an inferior court to grant an appeal to a party entitled to it, the appellate court will compel the granting of such appeal by mandamus. State ex rel. Allen. 92 Mo. 20; Hall v. Audrain County, 27 Mo. 329; State ex rel. v. Reynolds, 121 Mo.App. 699. (7) The statute provides for an appeal from "any special order after final judgment in the cause." Sec. 2038, R. S. 1909. (8) The judgment of August 21, 1916, in favor of relator, was a final judgment within the meaning of the statute and the decisions of this State, in that it was rendered on a submission of the entire case to the court; exhausted the court's jurisdiction as to the matters decided, and at once disposed of the entire controversy settling the rights of the parties and leaving nothing for further consideration. Sec. 2090, R. S. 1909; State ex rel. v. Riley, 219 Mo. 667-693; Wolff v. Vette, 17 Mo.App. 36-37; Baker v. St. Louis, 189 Mo. 375.
Perry Post Taylor, Emil Mayer and Ben L. Shifrin for respondent.
(1) A court of general jurisdiction has inherent power during the same term in which a judgment is rendered to set aside or vacate its own judgments on motion of either party or on his own motion. Curry v. Trinity Zinc, Lead & Smelting Co., 157 Mo.App. 423; Ewart v. Peniston, 233 Mo. 695; Scott v. Jafee, 125 Mo.App. 573; Hess v. Seyp, 88 Mo.App. 66; Kunpp v. Miller, 133 Mo.App. 256; Smith v. Perkins, 124 Mo. 50. (2) (a) The mere setting aside or vacating of a judgment during the same term of court is not the granting of a new trial or a final judgment within the meaning of our statute. Breed v. Hobart, et al., 187 Mo. 140; Bussiere's Admr. v. Sayman, 257 Mo. 303; Badger Lumber Co., v. Boswell, 180 Mo.App. 180. (b) A new trial in the judicial examination of the issues involved in the case and the action of the respondent in this case does not come within the definition of a new trial as laid down by the authorities. Breed v. Hobart, et al., 187 Mo. 140. (3) No appeal lies from an order of court setting aside a judgment when the order is made during the same term in which the judgment is rendered. Bussiere's Adm. v. Sayman, 257 Mo. 303; Kidder v. Wright, 72 Mo.App. 378; State, ex rel. Merrill, v. Burns, et al., 66 Mo. 227; Smith v. Perkins, 124 Mo. 50; Freeman on Judgments, paragraph 90.
MANDAMUS. ORIGINAL PROCEEDING.
This is an original proceeding in this court by mandamus, whereby the relator seeks to compel the respondent, one of the judges of the circuit court of the city of St. Louis, to allow relator an appeal to this court from an order of respondent, as such judge, setting aside a judgment in favor of relator. To our alternative writ, wherein is incorporated relator's petition for the writ, the respondent filed a demurrer on which he stands, and the cause has been argued and submitted for adjudication on this demurrer.
By the allegations of the alternative writ, admitted by the demurrer, it is made to appear that on August 21, 1916, an action was pending in division No. 14 of the circuit court of the city of St. Louis, presided over by respondent, brought by James B. Thomas et al. against this relator--evidently a suit upon a foreign judgment; that the cause had previously been tried before respondent, sitting as a jury, a jury having been waived, and had been taken under submission by respondent and so held until the date last mentioned (being one of the days of the June term, 1916, of said circuit court), at which time respondent, as judge of said court rendered judgment in favor of relator, the defendant therein, respondent filing a "special finding of facts" (nothing appearing as to whether this was upon request or otherwise) as follows:
The alternative writ further alleges that on August 23, 1916, plaintiffs in said cause filed their motion for a new trial, which is fully set out; that thereafter, on September 30, 1916, and during the same June term, 1916, of said court, "plaintiffs, by leave of court, withdrew their motion for a new trial, and thereupon the court, on its own motion, set aside its order and judgment of August 21, 1916, and took the case under advisement, in order, as the court announced at the time, to allow plaintiffs to take a nonsuit;" that on the same day, this being the last day of the said June term, 1916, of said court, relator presented and filed his affidavit for appeal, in due form, and prayed an appeal to this court, with an allowance of ninety days in which to file a bill of exceptions and ten days after the adjournment of the term in which to file an appeal bond; but that respondent, as said judge, denied "the said prayer for an appeal and for time for filing final bill of exceptions and for giving and filing an appeal bond."
It is further alleged that thereafter, to-wit, on October 30, 1916, on application of plaintiffs in said cause, respondent, as judge of said court, "set aside his order of September 30, 1916, taking the cause under advisement, and allowed said cause to be dismissed by plaintiffs at their costs, all in pursuance of his announced intention on the 30th day of September, 1916, at which time the court set aside its judgment of August 21, 1916, in favor of the defendant, in order to allow plaintiff to take a non-suit."
The alternative writ commands the respondent to approve relator's affidavit for appeal, to allow relator an appeal to this court and to grant him a reasonable period within which to file his bill of exceptions and appeal bond, or to show cause on a day named why he should not do so.
The question presented is whether relator is entitled to prosecute an appeal from respondent's order of September 30, 1916, setting aside the judgment which had been rendered, during the same term, in defendant's favor. That a plaintiff is not entitled to take a nonsuit after the cause has been finally submitted and judgment has been rendered against him, is a proposition which admits of no dispute. And in Lawyers' Co-operative Publishing Company v. Gordon, 173 Mo. 139, 73 S.W. 155, our Supreme Court held that the trial court erred in sustaining a motion for a new trial, "for the purpose of permitting plaintiff to take a nonsuit." Whether that case is controlling upon the record of the cause out of which this mandamus proceeding arises, need not now be determined, since the matter is one going to the merits of the question to be determined on appeal, in the event that the case thus reaches this court. We are immediately concerned with relator's right to an appeal.
Respondent argues that the application for an appeal was premature; that relator should have waited and made application therefor after the nonsuit was taken on October 30, 1916. But obviously this is beside the case, for relator could not have prosecuted an appeal from the nonsuit.
On the other hand the order vacating the judgment rendered in his favor cannot be regarded as a "special order after final judgment," within the meaning of the statute (section 2038, Revised Statutes, 1909), as relator contends. This will readily appear from an examination of the opinion of the Supreme Court in Bussiere's Admr. v. Sayman, 257 Mo. 303, 165 S.W. 796.
The right of appeal exists, if at all, solely by virtue of the statute; for appeals are creatures of the statute. And it is apparent to us that if relator is here entitled to prosecute an appeal from this order it is on the ground that the order which deprived him of the benefit of a judgment rendered in his favor, is an "order granting a new...
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