State v. Arnold

Citation197 Mo. App. 1,193 S.W. 292
Decision Date06 February 1917
Docket NumberNo. 15536.,15536.
PartiesSTATE ex rel. WENDLING v. ARNOLD, Judge.
CourtCourt of Appeal of Missouri (US)

Original proceeding in mandamus by the State, on the relation of George R. Wendling, Jr., against Glendy B. Arnold, Judge. To the court's alternative writ which incorporated relator's petition for the writ, the respondent filed a demurrer. Alternative writ made peremptory.

Robt. McLaran and E. A. B. Garesche, both of St. Louis, for relator. Taylor, Mayer & Shifrin, of St. Louis, for respondent.

ALLEN, J.

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. Thompson 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 court finds that the record of the Municipal Court of New York is not properly certified, in that the judge's certificate fails to show that he was judge of Part I of the Municipal Court of the City of New York, or that he was the Chief Justice of said court.

"The court further finds that the transcript of the record of the Municipal Court of New York fails to contain a copy of any judgment of said court in favor of plaintiff."

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 90 days in which to file a bill of exceptions and 10 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 nonsuit." 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' Cooperative 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, Rev. Stat. 1909), as relator contends. This will readily appear from an examination of the opinion of the Supreme Court in Bussiere's Adm'r 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 trial" within the meaning and intendment of section 2038, supra, as it now stands and has stood since the amendment of 1891. The question presented is one not entirely free from difficulty; but we are persuaded that, inasmuch as the judgment was one rendered after a trial of the issues joined in the case, an order vacating and setting aside the judgment is comprehended within the provision of section 2038, supra, allowing an appeal "from an order granting a new trial."

In Bussiere's Adm'r v. Sayman, supra, following Crossland v. Admire, 118 Mo. 87, 24 S. W. 154, and Breed v. Hobart, 187 Mo. 140, 86 S. W. 108, it is held that an appeal will not lie from an order setting aside a default judgment, as being an order granting a new trial. It is said that where the judgment is one by default there has been no trial, and hence no "new trial" can be awarded, within the meaning of the statute. And in like manner this court in Schwoerer v. Christophel, 64 Mo. App. 81, held that under the ruling in Crossland v. Admire, supra, an appeal would not lie from an order setting...

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