Willis v. Willis

• Decision Date: 28 December 1954
• Docket Number: No. 7332,7332
• Citation: 274 S.W.2d 621
• Parties: Oscar B. WILLIS, Plaintiff-Appellant, v. Edith Mary WILLIS, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 621

274 S.W.2d 621

Oscar B. WILLIS, Plaintiff-Appellant, v. Edith Mary WILLIS, Defendant-Respondent.

No. 7332.

Springfield Court of Appeals, Missouri.

Dec. 28, 1954.

Rehearing Denied Jan. 24, 1955.

Ronald J. Fuller, Rolla, for plaintiff-appellant.

White & White, Rolla, for defendant-respondent.

STONE, Judge.

Plaintiff, then 57 years of age, instituted this action for divorce on March 30, 1953, by the filing of his petition charging indignities by his wife, then about 49 years of age. Defendant's answer admitted the marriage but denied all other allegations in plaintiff's petition. At the close of the contested trial on March 16, 1954, the court found that 'plaintiff is the innocent and injured party' and granted a divorce to him. On March 22, 1954, defendant 'by her attorney' filed 'Motion to Set Aside Divorce Decree' on the ground that 'at the time the acts complained of by plaintiff, if any, were committed, the defendant was not accountable for and was incapable of understanding their nature or of restraining herself from their commission because of her mental condition and insanity.' The prayer of defendant's motion was that the court 'set aside its decree of divorce to plaintiff' and 'set said case down for further hearing on the question of defendant's insanity.' On March 25, 1954, Dr. Harry H. Davis of Rolla testified in support of said motion; and, on March 26, 1954, 'on the court's own motion' the decree of March 16 was set aside and 'upon further consideration of the cause and the evidence adduced it is further ordered that plaintiff's petition is hereby dismissed.' After unavailing motion for new trial, plaintiff appealed.

We consider first defendant's 'Motion to Dismiss or Affirm' (Supreme Court Rule 1.16, 42 V.A.M.S.) because plaintiff-appellant delivered copies of his brief to defendant-respondent 34 days before the day set for hearing, rather than 45 days prior thereto as is required by Supreme Court Rule 1.09. Although notice of the setting for October 4, 1954, was mailed to counsel during July, 1954, defendant's attorney did not appear on the hearing date, sought no delay or continuance, made no complaint about tardy service of plaintiff's brief until defendant's motion to dismiss or affirm was filed more than two weeks after the case had been submitted, and has presented no brief on behalf of defendant. Under the stated circumstances and the record before us, we are of the opinion that 'the interests of justice * * * require' (Supreme Court Rule 1.15) that defendant's motion be overruled and that this appeal be determined on its merits.

At the outset, it may be observed that we entertain grave doubt as to the authority of the trial court to enter the order and judgment of March 26, 1954, setting aside the decree for plaintiff and immediately thereafter, upon the same evidence and without retrial, rendering a new judgment of diametrically contrary import. It would seem to be obvious that the order and judgment of March 26 could not be sustained under Sections 510.290, 510.310, subd. 3, 510.330 (or Supreme Court Rule 3.22 supplemental thereto), or Section 510.370, ¹ and that, if there be any warrant for that order and judgment, it must be found in Supreme Court Rule 3.25, which provides, in part, that 'The trial court retains control over judgments during the 30-day period after entry of judgment and may reopen, correct, amend or modify its judgment for good cause within that time.' (All statutory references are to RSMo 1949, V.A.M.S.)

Section 510.370, to which Rule 3.25 is 'supplemental,' plainly empowers the court only to 'order a new trial,' which, if and when granted, leaves the case for trial de novo as though there had been no trial [Smith v. Smith, Mo.App., 176 S.W.2d 647, 649(3); Brayton v. Gunby, Mo.App., 267 S.W. 450, 452(5); Dierman v. Bemis Bros. Bag Co., 144 Mo.App. 474, 129 S.W. 229, 230(2), opinion adopted 163 Mo.App. 522, 143 S.W. 1197], leaves 'no basis for the entry of a judgment' [Porter v. Chicago, B. & Q. R. Co., 325 Mo. 381, 28 S.W.2d 1035, 1037(3)], and does not permit rendition of a new judgment without retrial [Davis v. Lynn, 354 Mo. 1181, 193 S.W.2d 609, 610(2); Alt v. Dines, 227 Mo. 418, 126 S.W. 1035, 1036(3); Hurley v. Kennally, 186 Mo. 225, 85 S.W. 357, 358(3, 4)]. None of the terms 'reopen', 'correct', 'amend' or 'modify', as used in 'supplemental' Rule 3.25, appear to have any connotation which would support the order and judgment of March 26. ² But, although we thus express our views, we think it unnecessary to rest this opinion upon our interpretation of Rule 3.25 which, having been promulgated by the Supreme Court, perhaps more appropriately may be construed by that tribunal.

Even though a trial court has inherent jurisdiction, during the period for which it retains control over a judgment--formerly during the judgment term, now 'during the 30-day period after entry of judgment' (Rule 3.25)--to set aside the judgment on the court's own motion 'if, on a reconsideration and further reflection, he (is) satisfied that his first conclusions were wrong' [Hurley v. Kennally, supra, 85 S.W. loc.cit. 358], and even though 'an outside suggestion may be the motivating cause of the investigation' resulting in the setting aside of the judgment [Savings Trust Co. of St. Louis v. Skain, 345 Mo. 46, 131 S.W.2d 566, 573-574], it has long been recognized that a judgment validly rendered following a trial upon the issues cannot be vacated except upon 'some legal ground' [State ex rel. Wendling v. Arnold, 197 Mo.App. 1, 193 S.W. 292, 294(5); Thompson v. Wendling, Mo.App., 219 S.W. 671, 672(2); State ex rel. Gregory v. Henderson, 230 Mo.App. 1, 88 S.W.2d 893, 910] and that this salutary principle is applicable to a decree of divorce [Morris v. Morris, 60 Mo.App. 86, 88(1); Scales v. Scales, 65 Mo.App. 292, 294(2)].

Although, in determining whether a motion for new trial should be granted, a trial court is vested 'with a wide discretion to be exercised in furtherance of substantial justice' [Donati v. Gualdoni, 358 Mo. 667, 216 S.W.2d 519, 522(10)], the idea that a judgment should not be set aside arbitrarily, capriciously or without good cause is inherent in our practice. This thought finds expression in Supreme Court Rule 3.22 (supplemental to Section 510.330) providing that 'The court may award a new trial of any issue upon good cause shown' and in Supreme Court Rule 3.25 (supplemental to Section 510.370) permitting a trial court to 'reopen, correct, amend or modify its judgment for good cause'; and, whether entered on motion of a party or on the court's initiative, an order granting a new trial shall specify the grounds therefor. Sections 210.330 and 510.370. Compliance with this requirement is 'a simple matter' [Hammond v. Crown Coach Co., Mo., 263 S.W.2d 362, 366]; and, when the court grants a new trial without specifying of record the ground or grounds therefor, the presumption is that the court 'erroneously granted the motion for new trial', 'the burden of supporting such action is placed on the respondent', and 'it shall never be presumed that the new trial was granted on any discretionary grounds' [Supreme Court Rule 1.10; Drake v. Hicks, Mo., 261 S.W.2d 45, 48(1)]. It logically follows that the considerations which motivated legislative imposition of the quoted requirements and judicial declaration of the stated presumptions with respect to the granting of a new trial would, a fortiori, compel recognition and application of the same requirements and presumptions with respect to action of a trial court in not only setting aside a judgment theretofore validly entered but also, upon the same evidence and without retrial, rendering a new judgment for the opposite party (if, contrary to our expressed opinion, such action otherwise were authorized and permitted).

That the order and judgment of March 26 in the instant case specified no ground on which the prior judgment of March 16 was set aside and a new one entered, and that defendant has made no pretense of carrying 'the burden of supporting such action' (Rule 1.10), would make it unnecessary and perhaps even inappropriate to go further in this discussion were it not for the fact that this is an action for divorce 'with which the state is concerned' [Hartle v. Hartle, Mo.App., 184 S.W.2d 786, 789(3)], to which society represented by the state is a party [Koslow v. Taylor, 356 Mo. 755, 203 S.W.2d 433, 437(4); Wagner v. Shelly, Mo.App., 235 S.W.2d 414, 417(4)], and in which '(t)he conscience of the court must protect the public interest' [State ex rel. Couplin v. Hostetter, 344 Mo. 770, 129 S.W.2d 1, 4(6)]. Being mindful of the foregoing and of the holding that, even though insanity is not pleaded affirmatively [Bethel v. Bethel, 181 Mo.App. 601, 164 S.W. 682, 684(3)], a decree of divorce may not be granted to plaintiff for acts committed by defendant while insane [Crow v. Crow-Humphrey, 335 Mo. 636, 73 S.W.2d 807, 812(3); Thomason v. Thomason, Mo.App., 262 S.W.2d 349, 352; Fossett v. Fossett, Mo.App., 243 S.W.2d 625, 632(1); Dunn v. Dunn, 240 Mo.App. 87, 216 S.W.2d 141, 146(5)], we proceed to a consideration of whether defendant in the instant case was 'insane' at the time of the acts complained of. In approaching this question, it should be borne in mind that the legal presumption that every person is sane [Fendler v. Roy, 331 Mo. 1083, 58 S.W.2d 459, 464(6); Reynolds v. Maryland Casualty Co., 274 Mo. 83, 201 S.W. 1128, 1131(2); Rapp v. Rapp, Mo.App., 238 S.W.2d 80, 91(11)] obtains until it takes flight and vanishes in the light of contrary evidence [Edwards v. Business Men's Assur. Co. of America, 350 Mo. 666, 168 S.W.2d 82, 90(13); State ex rel. United Mut. Ins. Ass'n v. Shain, 349 Mo. 460, 162 S.W.2d 255, 263(11)], and that the burden or proving insanity is upon the party asserting it [Fendler v. Roy, supra, 58 S.W.2d loc.cit. 464; Dunn v. Dunn, supra, 216 S.W.2d loc.cit. 143(6)].

Although...