W. M. Crysler Co. v. Smith

• Decision Date: 26 March 1964
• Docket Number: No. 8240,8240
• Citation: 377 S.W.2d 134
• Parties: W. M. CRYSLER COMPANY, a corporation, Plaintiff-Appellant, v. Charles SMITH, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 134

377 S.W.2d 134

W. M. CRYSLER COMPANY, a corporation, Plaintiff-Appellant, v. Charles SMITH, Defendant-Respondent.

No. 8240.

Springfield Court of Appeals, Missouri.

March 26, 1964.

Franklin D. Holder, Kennett, for plaintiff-appellant.

Charles M. Cable, Cable & Stephenson, Kennett, for defendant-respondent.

HOGAN, Judge.

This action was brought to recover a deficiency judgment. The defendant filed a motion to dismiss the action on the grounds that a prior suit upon the same cause of action had been dismissed for failure to prosecute, and that the dismissal constituted a prior adjudication upon the merits. After hearing evidence, the trial court granted the motion and dismissed this cause. The plaintiff had appealed.

The pleadings in the first action are not before us, but it is conceded that in both the earlier case and the present one, the cause of action and the parties were identical. In this last action, begun on January 29, 1963, the plaintiff's petition recited its corporate existence, the execution of an instalment note by defendant to the plaintiff, subsequent default by the defendant, exhaustion of the security, and the existence of an unpaid balance due on the note. The plaintiff alleged demand and refusal to pay, and prayed judgment for the balance due.

The defendant's motion to dismiss specifically set out in this present case that (1) a prior suit upon the same cause of action (reciting the style and number) had been begun in the same court on November 18, 1960, and that personal service had been obtained on the defendant; (2) on May 17, 1962, 'after due notice to plaintiff,' the trial court had dismissed this earlier action for failure to prosecute; and (3) the first order of dismissal was, in legal effect, a dismissal with prejudice, and therefore was res judicata as to the second or present case.

The trial court heard evidence on the instant motion to dismiss on two occasions. Through the testimony of the circuit clerk, a Mr. Ross, and by reference to the court's files and its permanent record, it was established that on November 18, 1960, the plaintiff had declared upon the same cause of action through a different attorney, and subsequently service was obtained on the defendant. On December 27, 1960, the defendant filed an alternative motion to dismiss or to make more definite and certain. The record before us does not indicate for what reason the cause failed to progress to trial, but it does appear that nothing further was done with the case until May 14, 1962, when it was dismissed for failure to prosecute. The permanent record of the circuit court revealed that at that time this entry had been made: 'Now on this day, cause dismissed for failure to prosecute.' There is nothing in this record to show that the case was ever placed on any motion docket or that any request was ever made that the motion be disposed of. Neither the trial court's record nor the case file contained any copy of any notice, or notation of any notice, given before the order of dismissal was entered. It does appear that after the order of dismissal had been entered, a copy was sent by mail both to the attorneys for the plaintiff and for the defendant on May 17, 1962.

Mr. Ross, who had been circuit clerk since 1947, testified that in April 1962 (he was not certain as to the precise date) the trial court entered an order that all 'old and inactive' cases would be set for hearing, or called, on May 14, 1962, so that some disposition could be made of them. As we understand the record, there was no local rule governing the procedure to be followed in dealing with inactive matters, but during the course of the trial the court interjected that 'during the past eight or ten years' it had been the court's 'custom' to dismiss cases which had been inactive for a year or more on an 'annual dismissal day.' The April 1962 order did not specify how old a case would be considered 'old and inactive,' but the clerk, attempting to implement the order and acting upon his understanding of the trial court's customary practice, went through the docket on his own initiative and 'fixed one year as the dead line, that was on my own, and notified every firm that had a case that was on the docket that was a year old * * * that this order had been made, and on May 14th these cases would be called.'

It is clear from the record that Mr. Ross believed a notice of the proposed hearing--that of May 14, 1962--was sent to the attorneys representing the plaintiff sometime prior to the hearing and dismissal on May 14, 1962, but the evidence is not at all clear as to the content of the notice or the manner in which it was transmitted. No copy of the notice made up by Mr. Ross appears in the record and, in explaining what the notice recited, Mr. Ross stated that '[it] was a general notice to the firm, it did not specifically list any lawsuit, it was just a general notice that all cases that were a year old on that day would be called. * * *' While the clerk testified that such a notice was transmitted, we find no positive statement establishing whether it was mailed, or if it was to whom it was mailed, or how it was addressed. Mr. Ross testified that 'it could have been' that he notified the plaintiff's attorneys by telephone; he had, however, no record to indicate that he had actually done so, and he seems not to have been sure that he telephoned them at all. On the other hand, there is no substantial controversy as to the notice given subsequent to the order of dismissal. The trial court's case file contained a copy of the order of dismissal which had been mailed both to the attorneys for the plaintiff and for the defendant on May 17, 1962, three days after the first action had been dismissed. Mr. Ross testified that no communication of any sort had been received since that time from the plaintiff's former attorneys, and there was no record of any request for action by the trial court upon the part of the plaintiff's former attorneys.

Before proceeding to the merits of this appeal, we must deal briefly with two preliminary matters, the first of which is our jurisdiction. The question upon which this case turns is whether the plaintiff or its attorneys received a reasonable notice and opportunity to be heard in connection with the trial court's dismissal of the first action. Rule 67.03 ¹ provides in part that '* * * any involuntary dismissal other than one for lack of jurisdiction, for prematurity of action or for improper venue shall be with prejudice unless the court in its order for dismissal shall otherwise specify.' On its face, therefore, the order in question would operate as a dismissal with prejudice. However, due process requires that the plaintiff be given notice and an opportunity to be heard before a dismissal for failure to prosecute will operate as a dismissal with prejudice and as an adjudication on the merits, whatever the order recites. Crispin v. St. Louis Pub. Serv. Co., 361 Mo. 866, 869-870, 237 S.W.2d 153, 155-156[2, 3]; Bindley v. Metropolitan Life Ins. Co., 358 Mo. 31, 37-38, 213 S.W.2d 387, 391[5-7]; Levee Dist. No. 4 of Dunklin County v. Small, Mo.App., 281 S.W.2d 614, 617[3-5]. Thus, in one sense, this case turns on whether the appellant plaintiff was afforded due process when the first case was dismissed, and if the construction of the federal constitution or the Missouri Constitution of 1945 is involved, then exclusive appellate jurisdiction of this appeal is in the Supreme Court. Const. of 1945, art. V, Sec. 3, V.A.M.S. Still, the jurisdiction of the Supreme Court is not invoked by the mere fact that a constitutional question inheres in the case, or may be argumentatively inferred from the facts, City of St. Louis v. Butler Co., 358 Mo. 1221, 1229, 1233, 219 S.W.2d 372, 378, 380. If the appellant wishes to invoke the jurisdiction of the Supreme Court on constitutional grounds, he must, among other things, explicitly designate the constitutional provision which he claims has been violated, and he must adequately cover the constitutional points in his brief. Cirese v. Spitcaufsky, Mo., 259 S.W.2d 836, 838; City of St. Louis v. Butler Co. supra, 358 Mo. at 1227, 219 S.W.2d at 376[5, 6]; Baker v. Baker, Mo.App., 274 S.W.2d 322, 325[5-9]. On this appeal, the plaintiff has neither specified any section or article of the federal or state constitution as having been violated, nor has he briefed any constitutional question. Since this is true, and since the question whether there was proper notice in a particular case is ordinarily a fact question, Greene v. Greene, Mo., 368 S.W.2d 426, 428[1-7], Baker v. Baker, supra, 274 S.W.2d at 325, we somewhat hesitantly have resolved that we have jurisdiction.

Further, we should briefly notice the posture of the case on appeal. The plaintiff filed no motion for new trial, but appealed directly from the trial court's order dismissing the second action. Such a procedure brings the case to us just as any other court-tried case, and it is therefore our duty to review the matter both upon the law and the evidence. Crispin v. St. Louis Pub. Serv. Co., supra, 361 Mo. at 870, 237 S.W.2d at 156; Rule 73.01(d).

Turning to the merits of the case, the positions of the parties may be simply stated. The burden of the plaintiff's position here is that it received either no notice or insufficient notice of the trial court's intended action when the first case was dismissed. The defendant argues that the plaintiff's former attorneys received an adequate oral notice, according to the evidence, and that an oral notice was sufficient. The grounds upon which the trial court acted are not apparent from the record.

The case is not without its difficulties. It was stipulated that if plaintiff's former attorney were present, he would testify that he received no notice prior to the dismissal of the first case, but there is no avoiding the fact that notice of the trial court's action was given...