State v. Oberheide

• Decision Date: 02 June 1931
• Docket Number: No. 21495.,21495.
• Citation: 39 S.W.2d 395
• Parties: STATE ex rel. SCHWETTMAN v. OBERHEIDE.
• Court: Missouri Court of Appeals

39 S.W.2d 395

STATE ex rel. SCHWETTMAN v. OBERHEIDE.

No. 21495.

St. Louis Court of Appeals. Missouri.

June 2, 1931.

Appeal from Circuit Court, Cape Girardeau County; Frank Kelly, Judge.

"Not to be officially published."

Proceeding by the State, on the relation of Sadie Schwettman, against F. W. Oberheide. From an order overruling a motion to vacate the judgment, defendant appeals.

Affirmed.

J. Grant Frye, of Cape Girardeau, for appellant.

Spradling & Dalton, of Cape Girardeau, for respondent.

BECKER, J.

This is an appeal from an order overruling a motion to vacate a nil dicit judgment in a suit on a constable's bond for an alleged wrongful levy on the undivided half interest in a cow and a calf which plaintiff below claimed exempt as head of a family.

In its several phases this is the third time this litigation has been before us for review on appeal. See Schwettman v. Sander (Mo. App.) 7 S.W.(2d) 301, and Id. (Mo. App.) 16 S.W.(2d) 683. As counsel for appellant in his argument states, the original controversy arose out of an undivided half interest in a calf, the value of which interest, at the institution of the litigation, was stated by plaintiff in her replevin affidavit to be $7.50. By reason of the protracted litigation the record discloses that now the calf has grown to maturity and in turn has had a calf, and it is the alleged unlawful sale by the constable of the half interest in the now cow and calf that we have on appeal before us.

The defendant was duly summoned, and in due course appeared and filed a demurrer to plaintiff's petition. While the demurrer was pending plaintiff amended her petition by leave, whereupon defendant's demurrer was overruled and the defendant granted leave to refile his demurrer.

As to the proceedings in the case from this point on we quote from the record as follows:

"May 2, 1930.

"This cause coming on to be heard on this day comes the plaintiff herein, in person and by attorney, also comes the defendant, F. W. Oberheide in person, but his attorney of record comes not, and defendant declining to employ additional counsel, it is now the order of the court that said defendant's demurrer, heretofore filed, be overruled, and it appearing to the court that no answer has been filed, a jury is waived by the plaintiff, this cause is taken up and submitted to the court upon the petition of the plaintiff and her evidence taken in open court; whereupon the court having seen and heard all of plaintiff's testimony, orders that this cause be argued before the court if the parties herein so desire."

"May 5, 1930.

"This cause having heretofore been taken up and submitted to the court on Friday, May 2, 1930, now on this day comes again the plaintiff herein by her attorney of record, but defendant comes not, whereupon the court finds the issues herein for the plaintiff and against the defendant and his sureties in the sum of one thousand ($1,000.00) dollars, the penalty of the bond herein sued upon, and the court further finds that the damages sustained by plaintiff is the sum of fifty-five ($55.00) dollars, same being the value of a one-half interest in the animal sold.

"It is therefore considered, ordered and adjudged by the court, that plaintiff, Sadie Schwettman, have and recover of and from the defendant, F. W. Oberheide and his sureties, Robert Vogelsang and Alfred Hirsch, upon the bond sued on the sum of one thousand ($1,000.00) dollars, the penalty of said bond, together with the costs of this suit.

"The court further orders that the judgment herein be satisfied by the payment to plaintiff, of the sum of fifty-five ($55.00) dollars, the amount due her for one-half interest in property sold, together with her costs herein expended and that hereof execution issue therefor."

On May 9, 1930, defendant filed a motion to set aside the judgment theretofore rendered in the cause, which motion the court, after a hearing, overruled, and the defendant in due course appeals from the order of the circuit court overruling the motion to set aside said judgment.

It is argued here that the court abused its discretion in overruling the motion to set aside the judgment on the ground that appellant showed he could not have reasonably anticipated that the court would do more than merely rule on his demurrer on the day that the case was set.

This point is without merit, in that under the rules of court, which were introduced in evidence, motions and demurrers "must be called up by parties filing same and submitted to the court at least twenty-four hours before trial day as shown by the docket." On the hearing on the motion to set aside the judgment, counsel for defendant testified that he was under the impression that the court had taken the demurrer as submitted, but the trial judge was equally positive in his view that he had not taken the second demurrer under advisement. In this situation, in light of the record proper and the rule of court, supra, we are constrained to hold that the court did not abuse its discretion in this regard. In coming to this conclusion, we have in mind that section 775, Rev. Stat. of Mo. 1929, provides that all demurrers shall be determined during the term at which they are filed, and that section 789 provides that demurrers shall be considered and determined without delay. Holding, as we do, that the second demurrer was never submitted to the court, and it being incumbent upon counsel for defendant to present and submit his demurrer to the court, defendant is in no position to complain that his demurrer was carried over from term to term and not finally passed on until the day the case was set for trial.

It is further argued that the court should have sustained defendant's motion to vacate the judgment on the ground that the defendant had a meritorious defense, and that under all the facts and circumstances the defendant was not at fault in not having an answer on file, because it had been the custom of the court, after overruling a demurrer, to give not less than twenty-four hours in which to plead.

We have examined the record and rule that the court properly reached the...