State v. Sevier

• Decision Date: 12 November 1936
• Docket Number: No. 34680.,34680.
• Citation: 98 S.W.2d 980
• Court: Missouri Supreme Court
• Parties: STATE ex rel. UNION ELECTRIC LIGHT & POWER CO. v. SEVIER, Judge.

98 S.W.2d 980

STATE ex rel. UNION ELECTRIC LIGHT & POWER CO. v. SEVIER, Judge.

No. 34680.

Supreme Court of Missouri, Division No. 1.

November 12, 1936.

Original prohibition proceeding by the State of Missouri, on the relation of the Union Electric Light & Power Company, against the Honorable Nike G. Sevier, Judge of the Circuit Court of Miller County, Missouri.

Preliminary rule of prohibition made permanent.

David H. Robertson, of St. Louis, and Stillwell & Fendorf, of Tuscumbia, for relator.

Baker & Baker, of Fulton, and Cave & Hulen, of Columbia, for respondent.

HYDE, Commissioner.

This is an original proceeding in prohibition, in which a preliminary rule issued to prohibit respondent as judge of the circuit court of Miller county from proceeding in or taking cognizance of the case of R. S. Myers et al. v. Union Electric Light and Power Company. That case was before this court on appeal, from a prior judgment therein, and it was reversed and remanded in December, 1933. Myers v. Union Electric Light & Power Co., 334 Mo. 622, 66 S.W.(2d) 565. Respondent made return as required by the order of this court and relator filed a reply thereto. Respondent then filed a motion for judgment on the pleadings.

The material facts, hereinafter stated, appear from these pleadings. The Myers Case was regularly set upon the docket of the regular January term, 1935, of the circuit court of Miller county for Tuesday, January 22, 1935, which was the second day of that term. Plaintiffs' attorneys did not appear in the circuit court of Miller county on that day and respondent dismissed the case.

The following facts about this dismissal and subsequent proceedings are stated in respondent's return and are admitted to be true in relator's reply, to wit:

"That said cause has been on the docket for several terms; that during said regular January, 1935, Term, as aforesaid, and on Tuesday, January 22, 1935, one of the days of said term, this respondent called said cause and no one appeared on the part of the plaintiffs, and the respondent, without being requested so to do by the said defendant or its attorneys * * * did consider, order and adjudge that the plaintiffs take nothing by their suit; that said suit be dismissed for failure of plaintiff to prosecute and defendant go hence without day, and have and recover of said plaintiffs its costs and expenses laid out and expended, and that execution issue therefor, and that said final judgment of dismissal in the above terms was duly entered of record in said Circuit Court of Miller County on said date; * * * that on Friday, January 25, 1935, being one of the regular days of the regular January, 1935, term of said Miller County Circuit Court this respondent had ordered that said Miller County Circuit Court stand adjourned until February 18, 1935, at 9 o'clock a. m.; * * * that thereafter, * * * Mr. J. R. Baker (chief counsel) for and in behalf of the plaintiffs in said cause, to-wit, on February 12, 1935, filed their motion to set aside the order of dismissal and to reinstate said cause on the docket of said court; that said court was not actually in session on February 12, 1935, and your respondent was not in Miller County on that date; * * * that * * * respondent did not return to Miller County on February 18, 1935, and did not hold court in said county on said date and did not hold any sessions of court in said county after January 25, 1935, until the regular May term of said court; * * * that thereafter, and during the regular May Term, 1935, of said court, and on May 7, 1935, the defendant in said cause filed its motion, appearing specially for the purpose thereof and for no other purpose, to strike said cause from the docket, stating in said motion as grounds therefor that said cause had been dismissed for want of prosecution at the January, 1935, term of said court, and that said court no longer possessed jurisdiction in the cause of the person of the defendant Union Electric Light & Power Company."

The pleadings contain statements as to when each of plaintiffs' attorneys in the Myers Case obtained knowledge of the judgment of dismissal; why respondent entered this judgment; what respondent's intention was as to holding court again in Miller county during the January term, 1935; and what action respondent intended to take concerning this judgment if he had done so. None of these matters are material here, because the only question before us for consideration is: Did the court have any authority to set aside this judgment of dismissal at a subsequent term?

Relator's motion to strike the Myers Case from the docket was overruled at the May term, 1935, the judgment of dismissal was ordered set aside, the case was reinstated on the docket, and it was continued to the September term, 1935. Thereafter, relator made application for prohibition. Plaintiffs' motion to set aside the judgment of dismissal was filed more than four days after that judgment was entered. See section 1005, R.S.1929 (Mo.St.Ann. § 1005, p. 1272). It was not acted upon at the January term at which it was filed. The court took no other action at that term and in fact did not hold court again during that term after the day the motion was filed. If plaintiffs' motion did not carry the case over to the next term, the case was finally ended and the court had no authority, at the next term, to make any order affecting this judgment entered at the prior term. The term system may not be best for administration of justice under modern conditions, but it is the system we have and under which courts of this state must operate until it is changed.

This court, en banc, in State ex rel. Conant v. Trimble, 311 Mo. 128, 277 S.W. 916, 921, carefully considered this question, overruled all former cases holding that in such a situation a court had any such authority at a subsequent term, and stated its conclusions, as follows: "Untimely motions (being only suggestions to the trial court) cannot and do not carry the case over to the next term. Upon the failure of a party to file timely motions,...