Stubblefield v. Seals

• Decision Date: 07 September 1972
• Docket Number: No. 25920,25920
• Citation: Stubblefield v. Seals, 485 S.W.2d 126 (Mo. App. 1972)
• Parties: Monte R. STUBBLEFIELD and Letha Mae Stubblefield, Respondents, v. Tom SEALS, Appellant.
• Court: Missouri Court of Appeals

Page 126

485 S.W.2d 126

Monte R. STUBBLEFIELD and Letha Mae Stubblefield, Respondents, v.Tom SEALS, Appellant.

No. 25920.

Missouri Court of Appeals, Kansas City District.

Sept. 7, 1972.

Robert Devoy and Richard N. Brown, Brookfield, for defendant-appellant.

James J. Wheeler, Keytesville, for plaintiffs-respondents.

SWOFFORD, Judge.

The parties will be referred to herein as they were below.

Plaintiffs brought suit for damages for personal injuries and loss of services against the defendant, arising out of an automobile collision.The suit was filed on July 27, 1967, and on November 8, 1967, the defendant filed his answer in the nature of a general denial.

Two years after the suit was filed and on July 24, 1969, defendant filed a set of written interrogatories under Rule 56.01,Rules of Civil Procedure, V.A.M.R.Although some of these interrogatories were clearly subject to objection, the plaintiffs did not file any objections and did not answer these interrogatories until December 16, 1969.A review of the interrogatory answers shows that several of them were incomplete and three of the interrogatories were not answered at all.

The defendant filed on December 31, 1969 a motion to compel plaintiffs to answer interrogatories, which motion was sustained on January 6, 1970, and a supplemental order sustaining the motion to compel answers to interrogatories not covered in the December 31, 1969 order, was entered on February 16, 1971.

On May 7, 1971, defendant filed a motion for judgment by default, or in the alternative, for an order striking the plaintiffs' pleadings under Rule 61.01,Rules of Civil Procedure.

On May 12, 1971, an entry was made on the court's minutes which reads:

'Motion for judgment presented and passed to May 25 to be sustained if full compliance has not been made to previous orders.'

No formal order or judgment appears in the record covering this ruling.

On May 24, 1971, plaintiffs filed their motion to dismiss, without prejudice, which stated:

'Come now the above named Plaintiffs and move the Court for an Order dismissing Plaintiff's Petition heretofore filed in this cause without prejudice.'

Thereafter and on June 14, 1971, the trial court's minutes contained the entry:

'Plaintiffsmotion to Dismiss without prejudice sustained.Cause dismissed without prejudice.'

Thereafter and on June 24, 1971, defendant filed motion to amend judgment, wherein he related the above history and requested that the judgment of June 14, 1971 be amended to show dismissal with prejudice.This motion was later supplemented by brief and suggestions filed July 10, 1971.

The trial court took no further action, and on September 28, 1971, the defendant filed his notice of appeal to this court:

'from the Trial Court's automatic (by lapse of time under Civil Rule 82.05) overruling of said defendant's motion to amend judgment entered in this action on the 24th day of June, 1971.'

It is the position of the defendant, that the court erred in dismissing this cause without prejudice rather than with prejudice, and that the order of the court of June 14, 1971 sustaining plaintiffs' motion to dismiss without prejudice was a nullity in the light of the court's order of May 12, 1971, which latter order, defendant asserts, was self-executing on May 25, 1971, and that as a result of the dismissal without prejudice, the plaintiffs were given an undue advantage and defendant was improperly prejudiced.The position of the plaintiffs is that the trial court did not err and that the plaintiffs under Rule 67.01,Rules of Civil Procedure, had the unqualified right to dismiss their action without prejudice and that the motive or reason therefor is immaterial.

It is, to say the least, an unusual situation, where a defendant objects to the dismissal of a damage action based upon negligence pending against him.However, it cannot be denied that a dismissal without prejudice would permit the refiling of the suit and that the dismissal sought with prejudice might terminate the matter, except for a possible appeal by the plaintiffs.

The question of the jurisdiction of this court on appeal is apparent and it is our duty, sua sponte, to determine whether we have jurisdiction of this appeal although the parties stand mute on the subject.Unless the complaints brought to us are from final appealable orders or judgments and the appellant is a party aggrieved thereby, we are without jurisdiction.City of Hannibal v. Winchester, Mo.App., 360 S.W.2d 371;Chuning v. Calvert, Mo.App., 452 S.W.2d 580;Beezley v. National Life & Accident Ins. Co., Mo.App., 464 S.W.2d 535;Section512.020 V.A.M.S., and cases citedMissouri Digest, Vol. 2, Appeal and Error, k23, page 595.

In respects other than those noted above, this is an unusual situation.The notice of appeal states that the appeal is from the automatic overruling under Rule 82.05(now Rule 81.05) of defendant's motion to amend judgment.This was not a jury case, neither was there a trial before a court without a jury.This cannot, therefore, be a situation where a motion for a 'new trial' has been made and overruled.In that event, the appeal could not be from the order overruling the motion, but only from the judgment.Woods v. Cantrell, 356 Mo. 194, 201 S.W.2d 311;Mills v. Berry, Mo.App., 395 S.W.2d 228.

In the case of other authorized after trial motions, such as, under Rule 73.01(c),Rules of Civil Procedure, in court-tried cases to amend judgments, the appeal is also from the judgment, not from the order overruling the motion.

However, if substantial compliance has been had with the provisions of Rule 82.04(now Rule 81.04), Rules of Civil Procedure, the notice will be deemed sufficient.The only jurisdictional requirement of this rule is that the notice be timely filed.The averments in the notice are to be liberally construed so as to permit appellate review so long as the opposing party is not misled.A fault in the averments in the notice is not jurisdictional.Weller v. Hayes Truck Lines, Mo.App., 192 S.W.2d 677, (Mo.Sup. on transfer), 355 Mo. 695, 197 S.W.2d 657.We, therefore, rule that the timely notice given here would permit appellate review, if we otherwise have jurisdiction.

A plaintiff is given the right to voluntarily dismiss his action by statute and rule.Section510.130 V.A.M.S. provides in part as follows:

'Voluntary dismissal--New Trial.

1.A plaintiff shall be allowed to dismiss his action without prejudice 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 afterward.* * *'

This provision is also found in Rule 67.01,Rules of Civil Procedure.

It has generally been held that a voluntary dismissal under this statutory law is not reviewable upon appeal.Piatt v. Heim & Overly Realty Co., 342 Mo. 772, 117 S.W.2d 327;City of Marionville v. Frazier, Mo.App., 242 S.W.2d 737;State ex rel. State Highway Commission v. Lynch, Mo.Sup., 297 S.W.2d 400.

It has also been properly held that the defendant in most cases which have been voluntarily dismissed by the plaintiff under this statute, cannot appeal from such dismissal because he is not an 'aggrieved'party within the meaning of Section 512.020V.A.M.S. McIlvain v. Kavorinos, en Banc, 358 Mo. 1153, 219 S.W.2d 349;Aubuchon v. Ayers, Mo.App., 400 S.W.2d 472;City of Marionville v. Frazier, supra;State ex rel. State Highway Commission v. Lynch, supra.

Such a right to voluntary dismissal without prejudice by the plaintiff of his cause of action, however, is not an absolute right, and there is at least one well defined exception to the rule, which is well stated in the case of Smith v. Taylor, Mo.App., 289 S.W.2d 134, where the trial court denied plaintiff's request to voluntarily dismiss.

The court said, l.c. 140:

'We think the law is well settled that the right to dismiss a cause of action without prejudice under section 510.130 V.A.M.S., is not an absolute right.* * *

We agree with defendant that plaintiff did not have an absolute right under the Code to take a voluntary dismissal without prejudice, yet, the right to dismiss has been a well established right throughout all of our procedure.The evidence must show defendant would be injured.We think the mere fact that plaintiff would bring another action against defendant is not such an injury as would justify the court in denying plaintiff's request to take a voluntary dismissal.Defendant must show that some undue advantage would be given plaintiff by such dismissal or that under the circumstances defendant would lose some right of defense before the injury would justify the trial court's action.'(Emphasis added.)

In Kerr v. Grand Foundries, Inc., Mo.Sup., 451 S.W.2d 26, the court held that there must be some finding of loss of some right by defendant.It was said in Kerr, l.c. 29:

'It should be noted that appellant introduced no evidence relating to either of the two reasons for not allowing a dismissal without prejudice.'(Emphasis added.)Following this same rule are Rozen v. Grattan, Mo.App., 369 S.W.2d 882, andDallavalle v. Berry Grant Co., Mo.App.,...