Suess v. Motz

• Citation: 285 S.W. 775,220 Mo.App. 32
• Parties: ELIZABETH SUESS A MINOR BY MARIE SUESS, HER NEXT FRIEND, RESPONDENT, v. L. MOTZ, APPELLANT.
• Decision Date: 01 June 1926
• Court: Missouri Court of Appeals

285 S.W. 775

220 Mo.App. 32

ELIZABETH SUESS A MINOR BY MARIE SUESS, HER NEXT FRIEND, RESPONDENT, v. L. MOTZ, APPELLANT.

Court of Appeals of Missouri, St. Louis

June 1, 1926

Appeal from the Circuit Court of the City of St. Louis.--Hon. Wm. H Killoren, Judge.

AFFIRMED.

Judgment affirmed.

Wood & Teasdale for appellant.

(1) Appellant's motion after the dismissal is appealable whether viewed as a special order after judgment or a final judgment in a separate proceeding. No bill of exceptions or motion for new trial is necessary. Scott v. Crider, 272 S.W. 1010; Scott v. Rees, 300 Mo. 123; Norton v. Reed, 281 Mo. 482; Arndt v Arndt, 177 Mo.App. 420. (2) (a) Plaintiff may not dismiss a suit after submission of the cause to the jury. R S. 1919, sec. 1410; State ex rel. Motz v. Killoren, 271 S.W. 544; Stauffer v. Stauffer, 200 Mo.App. 477, 207 S.W. 240; McCauley v. Brown, 99 Mo.App. 625, 74 S.W. 464; State ex rel. Bakery Company v. Anderson, 269 Mo. 381, 190 S.W. 857; State ex rel. Potter v. Riley, 118 S.W. 647, 219 Mo.App. 667; Bank v. Butler, 163 Mo.App. 380, 143 S.W. 1117; Board of Education v. U. S. F. & G. Co., 155 Mo.App. 109, 134 S.W. 18; Klaiber v. Jorcke, 239 S.W. (Mo. App.) 880; Landau v. Ohio Letter Co., 204 Mo.App. 404, 201 S.W. 404; Lawyers Pub. Co. v. Gordon, 173 Mo.App. 139, 73 S.W. 154; Thomas v. Wendling, 219 S.W. 671; State ex rel. Wendling v. Arnold, 197 Mo.App. 1, 193 S.W. 292; Hess v. Ins. Co., 21 Mo.App. 93; McLean v. Stuve, 15 Mo.App. 317; Wilson v. Starke, 42 Mo.App. 376; Mayer v. Old, 51 Mo.App. 214; Lawrence v. Schreve, 26 Mo.App. 492; McArthur v. Schultz, 78 Iowa 364. (b) A plaintiff may not dismiss so as to prejudice the defendant, or so as to defeat his adversary out of a victory, or if the result is to derange defendant's rights, deprive him of a legal defense, or subject him to increased liabilities. Klaiber v. Jorcke, 239 S.W. 880; State ex rel. Bakery Company v. Anderson, 269 Mo. 381, 190 S.W. 857; 6 Ency. Pl. and Pr. 842. (c) But the policy of the law does not force a plaintiff to prosecute an action against his will; he may abandon it. 18 C. J. 1148; Brandenburger v. Puller, 266 Mo. 534. (3) (a) That portion of a judgment which goes beyond the pleadings or the jurisdiction of the court is coram non judice and of no effect. Court will not act sua sponte. Ecton v. Tomlison, 278 Mo. 282; State ex rel. v. Evans, 176 Mo. 310; Owens v. McCleary, 273 S.W. 145; 15 C. J. 797. (b) The addition to the order of dismissal of the words "without prejudice" is beyond the jurisdiction of the court. They should be stricken out and declared of no effect. Stauffer v. Stauffer, 200 Mo.App. 477; Evans v. Schaefer, 86 Ind. 135; Chicago etc. Co. v. Storage Co., 260 Ill. 485; Skinner v. Sinsheimer, 37 Ill.App. 467; Bostwick v. Abbott, 40 Barb. (N. Y.) 331; Parsons v. Riley, 33 W.Va. 464; Fisher v. Williams, 56 Vt. 586; Porter v. Morere, 30 La. Ann. 230; 34 C. J. 510, 783 and 792. (4) Where the law recognizes a right (created by statute or otherwise,) the party entitled to the benefit of the statute may resort to any existing remedy. To prevent a failure of justice in the absence of existing remedies, courts should devise or adopt such new remedy or mode of procedure as the situation may require. Cummings v. Winn, 89 Mo. 51; 1 C. J. 986 and 987, "Actions," and authorities noted. (5) Where the provisions of a statute are general everything necessary to make it effectual is supplied by implication. 36 Cyc. 1113 and 1136, and authorities cited; 25 R. C. L., pp. 979-980, sec. 228. (6) An attorney's mistake of judgment as to the law or his ignorance of facts which he ought to have known is not sufficient ground for vacating a judgment of dismissal entered upon his motion. Bacon v. Mitchell, 14 N.D. 454, 106 N.W. 129; Juneau County v. Hooker, 67 Wis. 322, 30 N.W. 357; 6 C. J. 646.

Fred Berthold for respondent.

(1) Where no motion for new trial was filed within time prescribed by the statutes . . . court is without authority to set aside judgment on motion made after said time prescribed by statute. Phil H. Pierce Co. v. Watkins, 263 S.W. 905; McClure v. Nat'l Life & Accident Co., 272 S.W. 1048; Roberts v. Sims, 237 P. 852; Secs. 1456, 1460, R. S. of Mo. 1919. (2) Where there is nothing in the record to show the filing of a bill of exceptions and the purported bill or the so-called "abstract of the case" did not show that it was signed by the trial judge, there was nothing before the appellate court for review. Atlas Cereal Co. v. Griffin Grocery Co., 259 S.W. 130. Matters of complaint against trial judge are not open to consideration where no exception was saved thereto in "bill of exceptions." Chapman v. Bimel-Ashcroft Mfg. Co., 263 S.W. 993; Arcadia Timber Co. v. Evans, 264 S.W. 810; Farm Mortgage & Loan Co. v. Schubert, 271 S.W. 873; Nahorski v. St. Louis Electric Terminal Rys. Co., 271 S.W. 749; Patterson Oil Co. v. Brodhead, 2 F.2d 598; Harris v. Chicago House Wrecking Co., 145 N.E. 666, 314 Ill. 500. Where abstract of record proper did not show filing of motion for new trial or in arrest of judgment, clerk's short form of transcript of evidence containing no motion for a new trial or in arrest, was insufficient to cure all such defects in the record. Spangler v. Benz, 267 S.W. 943. (3) On a second appeal the decision of the former appeal is the law of the case. Coleman v. Northwestern Mutual Life Ins. Co., 233 S.W. 187; Booth v. Scott, 240 S.W. 217; Trembley v. Fidelity Casualty Co. of New York, 243 S.W. 201; Davidson v. St-Louis-San Francisco Ry. Co., 256 S.W. 169, 301 Mo. 79; Foy v. United Rys. Co. of St. Louis, 243 S.W. 185. (4) Where a verdict was not merely informal, but was substantially defective in omitting to find a material issue . . . the defect could not be supplied by the court. Lummi Bay Packing Co. v. Kryder, 263 S.W. 543. (5) Points raised for first time in reply brief on appeal will not be considered. Buhler Mill & Elevator Co. v. Jolly, 261 S.W. 353. (6) Contract not introduced in evidence, read to jury, or contained in bill of exceptions, cannot be brought up in supplemental abstract. Erie City Iron Works v. Ferer, 263 S.W. 1008. (7) Faulty abstract of record cannot be corrected by appellant after suggestion of defect by adverse party, if time for filing is past. Goeben v. Quincy, O. & K. C. R. Co., 265 S.W. 850. (8) Jury, after being discharged from case, cannot legally be reconvened. Mattice v. Maryland Casualty Co., 5 F.2d 233.

BECKER, J. Daues, P. J., and Nipper, J., concur.

OPINION

BECKER, J.--

Plaintiff, an infant suing by her next friend, brought suit for damages for personal injuries alleged to have been sustained by being struck by defendant's automobile.

At the trial, after the case had been submitted to the jury and the jurors had retired to consider their verdict, plaintiff moved to dismiss the case and the court ordered said motion sustained and the cause dismissed without prejudice at the cost of the plaintiff.

Thereafter the defendant filed his motion which is styled, "Motion to amend . . . and to enter final judgment for defendant," in which motion the defendant moved the court (1) to amend the order of dismissal without prejudice to an order of dismissal with prejudice, and, (2) to enter a final judgment for defendant, which motion was by the court overruled.

Thereupon defendant brought an original proceeding in this court asking for a writ of mandamus against the trial judge commanding him to enter final judgment in the case for defendant. Our alternative writ was issued but upon a hearing a peremptory writ of mandamus was denied. [See State ex rel. Motz v. Killoren, 271 S.W. 544.] In this situation the defendant prosecutes this appeal.

Respondent urges that there is nothing before this court to review, contending that the appeal herein was not taken from the final judgment in the case but from the trial court's order overruling appellant's motion to set aside the judgment of dismissal. The point is without merit.

It is no longer open to question but that the action or order of a trial court on a motion to vacate a judgment, whether for irregularity on the face of the record or de hors the record, is the same and in each case is a final judgment from which an appeal or writ of error will lie. [Scott v. Rees, 300 Mo. 123, 253 S.W. 998; Scott v. Crider (Mo. App), 272 S.W. 1010; McClure v. National Life & Accident Ins. Co. (Mo. App.), 272 S.W. 1049.]

It is conceded in light of section 1410, Revised Statutes of Missouri, 1919, which specifically provides that a plaintiff, "shall be allowed to dismiss his suit or take a nonsuit 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," that the trial court had no authority to permit plaintiff to take a nonsuit after submission of the case to the jury. [See Lawyers' Co-Operative Publishing Co. v. Gordon, 173 Mo. 139, 73 S.W. 155; State ex rel. Motz v. Killoren, supra.]

It is at once observable that the facts in this case present a most unusual situation. Because of the error of the trial court in sustaining plaintiff's motion to dismiss after the case on trial had been submitted to the jury, if defendant's motion can be viewed as in effect a motion to set aside the judgment of dismissal and to reinstate the cause on the docket, such motion should have been sustained.

However an examination of defendant's motion filed after the nonsuit was allowed plaintiff, clearly shows that the defendant did not seek to have the judgment of nonsuit as such set aside, but sought to have the court, (1) "strike out from the order . . . the words, 'without prejudice' and insert in lieu thereof, 'with prejudice,' so that the order in part will read, ' . . and the court...