Woods v. Juvenile Shoe Corp. of America
| Decision Date | 14 November 1962 |
| Docket Number | No. 1,No. 49210,49210,1 |
| Citation | 361 S.W.2d 694 |
| Parties | Ellen WOODS, Plaintiff, v. The JUVENILE SHOE CORPORATION OF AMERICA, Respondent, and Robinson Shoe Company, a corporation, and Robinson's Kansas Shoe Company, Inc., Appellants |
| Court | Missouri Supreme Court |
Alvin C. Randall, Ralph H. Smith, Jr., Houts, James, Randall, Hogsett & McCanse, Kansas City, for appellants.
Thos. J. Conway, Jr., Popham, Thompson, Popham, Trusty & Conway, Kansas City, for respondent.
HOUSER, Commissioner.
Ellen Woods sued The Juvenile Shoe Corporation of America, a corporation, hereinafter 'the manufacturer,' and Robinson Shoe Company, a corporation, a retail shoe store, hereinafter 'the shoe store,' and Robinson's Kansas Shoe Company, Inc., a chain of shoe stores, hereinafter 'the shoe chain,' for $200,000 damages for personal injuries allegedly resulting in the necessary amputation of plaintiff's left leg, based on negligence of the manufacturer in manufacturing and negligence of the shoe store and shoe chain in selling to plaintiff a shoe with a tack in it, without inspecting it, and breach of implied warranty of fitness. After answering plaintiff's petition, the shoe store and shoe chain filed a joint cross-claim against the manufacturer for full indemnity for any judgment that might be rendered for plaintiff and against the shoe store and shoe chain. This is an appeal by the shoe store and shoe chain from a judgment of the circuit court dismissing the cross-claim.
First for consideration is respondent-manufacturer's claim that this appeal is premature; that the judgment of October 11, 1961 dismissing the cross-claim did not dispose of all of the issues in the case, and therefore was an unappealable judgment. Appellants-shoe store and shoe chain counter with the proposition that the trial court amended its judgment, thereby making it an appealable order. Respondent retorts that the amendment was invalid because made more than 30 days after the judgment.
After the issues were made up on plaintiff's petition and defendant's answers, and after the shoe chain and shoe store filed their cross-claim, the manufacturer filed a motion to dismiss the cross-claim for failure to state a 'cause of action' upon which relief can be granted. The trial court heard the motion to dismiss and on October 11, 1961 made an order that the cross-claim 'be and the same is hereby dismissed * * *.' At that time, October 11, the issues framed by plaintiff's petition and defendant's answers had not been tried; no order for a separate trial of the cross-claim had been requested or made, and no separate trial of the cross-claim had been conducted. The order of October 11 was not a final, appealable judgment. It was an interlocutory order. Dotson v. E. W. Bacharach, Inc., Mo.Sup., 325 S.W.2d 737, 739. An interlocutory order is always under the control of the court making it. Barlow v. Scott, Mo.Sup., 85 S.W.2d 504, and authorities cited, loc. cit. 519; Deickhart, Trustee v. Rutgers, 45 Mo. 132, 136. At any time before final judgment a court may open, amend, reverse or vacate an interlocutory order, Thompson v. Hodge, Mo.App., 348 S.W.2d 11, and authorities cited, loc. cit. 13, regardless of the general rule that, absent a motion for new trial, a final judgment becomes fixed and beyond the reach of the court to change, amend, or modify after the expiration of the thirty days allowed by Supreme Court Rule 75.01, V.A.M.R. A separate appeal from the interlocutory order of dismissal dated October 11 would have been premature and subject to dismissal, because of its interlocutory character and because there were other issues in the case remaining undetermined. Dotson, supra; McDonnell Aircraft Corp. v. Hartman-Hanks-Walsh Painting Co., Mo.Sup., 323 S.W.2d 788; Kidd v. Katz Drug Co., Mo.App., 244 S.W.2d 605, 606. In the exercise of its discretion, 1 the trial court on November 15, 1961 entered an order by way of amendment, which provided that the court's order of October 11 dismissing the cross-claim 'be and is hereby amended as follows: 'This order sustaining the Juvenile Shoe Corporation of America's motion to dismiss cross-claim of defendants Robinson Shoe Company and Robinson's Kansas Shoe Company, Inc. and dismissing said cross-claim, is hereby specifically designated as a final judgment for purposes of appeal within the meaning of Section 512.020, RSMo., V.A.M.S.' * * *' On November 15 the interlocutory order of dismissal became 'for the first time an appealable and final judgment,' authorizing an appeal 'within the appropriate time.' Dotson, supra, 325 S.W.2d, loc. cit. 739. Appellants filed their notice of appeal on November 20, in full compliance with the requirement of Supreme Court Rule 82.04 that the notice of appeal be filed not later than ten days after the judgment or order appealed from becomes final. The order of dismissal is properly here for review.
Under the ruling of the majority of this Court in Crouch v. Tourtelot, Mo.Sup., 350 S.W.2d 799, we have jurisdiction because the amount in dispute in this situation, where nothing of record indicates lack of good faith on plaintiff's part, is the amount claimed by plaintiff from defendants, which is in excess of $15,000.
On the merits, the question is whether the cross-claim states a 'cause of action' for indemnity against the manufacturer, based on negligence. The amended cross-claim recites the allegations...
To continue reading
Request your trial
-
Listerman v. Day & Night Plumbing & Heating Service, Inc.
...281 S.W.2d 297, 304(11); Kansas City Southern Ry. Co. v. Payway Feed Mills, Inc., Mo., 338 S.W.2d 1, 5(2). See Woods v. Juvenile Shoe Copr. of America, Mo., 361 S.W.2d 694, 697(5) Busch & Latta Paint Co. v. Woermann Const. Co., 310 Mo. 419, 437, 276 S.W. 614, 619(8).4 The only case cited by......
-
Englezos v. Newspress and Gazette Co.
...order." Around the World Importing, Inc. v. Mercantile Trust Co., 795 S.W.2d 85, 88 (Mo.App.1990), citing, Woods v. Juvenile Shoe Corporation, 361 S.W.2d 694, 695 (Mo.1962). As explained by the Missouri Supreme Logic and justice would seem to indicate that a trial court should be permitted ......
-
Welkener v. Kirkwood Drug Store Co., 52057
...for indemnity; Hughes Provision Co. v. La Mear Poultry & Egg Co., 242 S.W.2d 285 (Mo.App.1951); Woods v. Juvenile Shoe Corp. v. America, 361 S.W.2d 694 (Mo.1962); 3A Frumer & Friedman, supra, § 44.02[b] at 15-30, 15-31; Howell v. Bennett Buick, Inc., 52 A.D.2d 590, 382 N.Y.S.2d 338 (1976); ......
-
Sherrill v. Wilson, 64746
...set that judgment aside within 30 days, just as any other judgment, and post-judgment motions could have been filed. Woods v. Juvenile Shoe Corp., 361 S.W.2d 694 (Mo.1962) does not rule the point before us. It simply holds that the court's power to enter an order making a judgment which doe......