The State ex rel. Smith v. Coleman

• Decision Date: 05 October 1914
• Citation: 170 S.W. 442,182 Mo.App. 358
• Parties: THE STATE OF MISSOURI ex rel. THOMAS J. SMITH, Appellant, v. SAMUEL L. COLEMAN, Treasurer of Bates County, Missouri, Respondent
• Court: Kansas Court of Appeals

170 S.W. 442

182 Mo.App. 358

THE STATE OF MISSOURI ex rel. THOMAS J. SMITH, Appellant, v. SAMUEL L. COLEMAN, Treasurer of Bates County, Missouri, Respondent

Court of Appeals of Missouri, Kansas City

October 5, 1914

Appeal from Bates Circuit Court.--Hon. C. A. Calvird, Judge.

REVERSED AND REMANDED (with directions).

Judgment reversed and cause remanded.

Silvers & Silvers, D. C. Chastain, Frank Hagerman and T. J. Smith for appellant.

W. O Jackson, J. F. Francisco and J. F. Smith for respondent.

TRIMBLE J. Johnson, J., concurs. Ellison, P. J. not sitting.

OPINION

TRIMBLE, J.

Relator has appealed from an order of the circuit court of Bates county, Missouri, sustaining a motion for new trial filed by defendant. Judgment was rendered against defendant at the February term, 1913, and his motion for new trial was sustained at the May term following. The contention is that no motion for new trial was filed until after the term at which the judgment was rendered had ended, and that consequently the court could not entertain such motion nor grant a new trial.

The suit is a proceeding in mandamus brought against the Treasurer of Bates county to compel the payment of two warrants drawn on the Construction Fund of River Drainage District No. 1 of Bates county, Missouri. Said Drainage District is a corporation organized under article 4, Chapter 41, Revised Statutes 1909.

The warrants, both of which are now owned and held by relator, Thomas J. Smith, were regularly and duly issued to relator and to Frank Hagerman in payment of attorney's fees due them under a contract whereby they were employed to prosecute a writ of error to the United States Circuit Court of Appeals and obtain the reversal of a judgment obtained by the contractor for creating the drainage system of said district.

The writ of error was duly prosecuted and a reversal of the judgment was obtained, and on February 7, 1913, the warrants were duly issued and delivered. The treasurer, however, for some reason declined to pay them. This refusal was not because of a lack of funds but apparently because of a doubt as to the legality of using a portion of funds collected for the construction of a drainage district to pay attorney's fees incurred in defending the fund from the charges made by the contractor.

To settle this question and obtain payment of the warrants, relator applied to the circuit court at its February term, 1913, for a writ of mandamus. Upon the filing of the application, defendant appeared and waived the issuance of the alternative writ and consented to a trial at that term. He then filed an answer in which all of the allegations of the application were admitted to be true, (among which was an allegation that there was in the funds of the District more than $ 20,000 and therefore ample funds with which to pay said warrants). The answer further set up the fact that the warrants were issued for services rendered as attorneys for the Drainage District, and alleged that defendant did not know whether the funds in his hands were available for the payment of relator's warrants and therefore denied that they were so available.

The court rendered judgment in relator's favor and directed the peremptory writ of mandamus to issue in which defendant was commanded to pay said warrants. This judgment was rendered on the last day of the February term, to-wit, March 7, 1913, somewhere between ten and half past eleven o'clock in the forenoon. No notice was given in anyway either to the parties or opposing counsel or to the court that defendant intended or desired to file a motion for new trial. At 12:40 in the afternoon the judge of the court left the courthouse and departed from Bates county intending not to return until the next term, and did not return until the first day of the next term which began May 27, 1913. When the judge left he verbally instructed the clerk to receive all filings up to the usual hour for adjournment of court, which was six o'clock p. m.; but no order of record was made to that effect. This was pursuant to a custom which the court and the attorneys thereof had to file "formal pleadings" on the last day after the judge had left for home and up to the usual time of adjournment, and filings so made had always been treated the same as if filed when the judge was present.

After the court had thus separated and the judge thereof had left the county intending not to return until the next term, defendant presented to the clerk, for filing, the motion for new trial herein. This motion was presented in the latter part of the afternoon of that day somewhere in the neighborhood of four o'clock. From the time the judge left at 12:40 p. m., no special judge was elected or acting, nor any other person acting or assuming to act, as judge of said court. The clerk, pursuant to said custom, received said motion and filed it.

On the first day of the next term, May 27, 1913, relator filed a motion to strike out defendant's motion for new trial on the ground that it was filed after the end of the term at which the judgment was rendered. The motion to strike out was overruled and the motion for new trial sustained. Whereupon this appeal was taken.

The question arising upon the foregoing facts concerning the filing of the motion for new trial, (which facts are admitted), is, had the circuit court adjourned and the term come to an end before the motion was filed? If this be answered in the affirmative then the court had no power, at the next or any other term, to grant a new trial or to entertain a motion for that purpose. Such a motion must be filed before the end of the term at which the judgment was rendered. [Sec. 2025, R. S. Mo. 1909.] The provisions of this statute are mandatory and a motion filed after the time allowed by the statute cannot be considered. [Brinton v. Thomas, 138 Mo.App. 64, 119 S.W. 1016.] If the motion for new trial was not filed during the term when the judgment was rendered, the trial court had no authority to sustain it. [State v. Brown, 206 Mo. 501, 506, 7, 103 S.W. 955; State v. Fawcett, 212 Mo. 729, 111 S.W. 562; Williams v. Kansas City Southern R. Co., 156 Mo.App. 675, 138 S.W. 44; Hecht v. Heimann, 81 Mo.App. 370; Jones v. Marble Head Lime Company, 128 Mo.App. 345, 348, 107 S.W. 420.]

Defendant does not controvert the foregoing proposition. His contention is over the question whether or not the February term was adjourned or had come to an end at the time the motion for new trial was filed.

Under the admitted facts it must be said that the court had adjourned...