Wooten v. Friedberg

Decision Date11 November 1946
Docket Number39745
Citation198 S.W.2d 1,355 Mo. 756
PartiesRalph J. Wooten and Frances P. Wooten, Appellants, v. Frank H. Friedberg
CourtMissouri Supreme Court

Rehearing Denied December 9, 1946.

Appeal from Jackson Circuit Court; Hon. Brown Harris Judge.


Charles M. Miller for appellants.

(1) This case was tried under the "Civil Code of Missouri" effective January 1, 1945, and under Section 119 thereof, the court had no jurisdiction, power or authority to make, of its own motion or initiative, the order or judgment which it did, thus setting aside the judgment entered in favor of the plaintiffs and the result of a trial on July 19, 1945, 30 days having elapsed after the entry of the judgment. (2) The action of the court was also violative of Rule 3.25 made by this court, which provides that a trial court loses control over a judgment 30 days after entry of the judgment. (3) No motion was filed by defendant within 10 days after entry of judgment of July 19, 1945, as required by Section 116 of the said Civil Code. The filing of defendant's motion on August 13, 1945, more than 10 days after the entry of the judgment, did not give the court authority, after 30 days had elapsed, to set aside the judgment of its own motion and initiative. (4) The action of the court was without a hearing or notice to plaintiffs and was ex parte as to plaintiffs. (5) The defendant's "Motion to Set Aside Default Judgment" was not timely filed and the judgment of July 19, 1945, was not a default judgment, and the defendant's motion was a misnomer and unauthorized in law. Davis v. Robinson, 126 Mo.App. 293, 102 S.W. 1048. (6) The said motion of defendant did not allege any valid grounds for the sustaining of the motion, or in other words made "no case" justifying a sustaining of the motion. Crutcher v. K. C Viaduct & Terminal Co., 180 Mo.App. 368, 168 S.W. 826, and Cavanaugh v. McCall, 187 Mo.App. 256, 173 S.W. 725. (7) The action of the court of September 10, 1945, on defendant's motion, after hearing, was final and was res adjudicata, and the court had lost jurisdiction of plaintiffs and the case. (8) Upon the allegations of defendant's motion, and the evidence heard thereon, the motion should have been overruled, as the court so ruled on September 10, 1945, and the court erred in later attempting, of its own motion and initiative, to sustain it. (9) The judgment of July 19, 1945, was a valid and legal judgment and no valid grounds exist for setting the same aside, as the trial court did, and said action of the court on October 4, 1945, should be reversed and set aside. Webb v. Toms, 86 Mo. 591, Secs. 1255, 1257, R.S. 1939.

William B. Teasdale and Kaer P. Vanice, II, for respondent.

(1) The original decree or judgment entered on July 19, 1945, was a default judgment and the decree so recited. The defendant, at the same term of court, filed his motion to set aside the default judgment. This motion was filed on August 13, 1945, and within 30 days of the original decree. The hearing on the motion was held on August 23, 1945, and taken under advisement. The ruling on this motion was made on September 10, 1945, the first day of the September term, at which time the court overruled defendant's motion. However, at the same term and within 30 days, to-wit, October 4th, the court of its own motion, set the same aside, and then sustained defendant's motion. Rule 3.27, Supreme Court; Sec. 119, Civil Code of Missouri. (2) The motion filed by defendant carried the judgment over from the May term to the September term and it did not become a final judgment during the May term. (3) The modification of a judgment in an equity suit at term subsequent to judgment term was proper, where motions for new trial and in arrest of judgment were filed and continued to subsequent term. Herman v. Kaiser, 85 S.W.2d 928; Miller v. Crawford, 140 Mo.App. 711, 126 S.W. 984; Dower v. Conrad, 207 Mo.App. 176, 232 S.W. 174; Moore v. Dawson, 210 Mo.App. 9, 239 S.W. 530. (4) The court may set aside a judgment on motion, at subsequent term in order to correct irregularities patent. Sec. 1267, R.S. 1939; Crabtree v. Aetna Life Ins. Co., 341 Mo. 1173, 11 S.W.2d 103; Boggess v. Jordan, 283 S.W. 57. (5) A motion to set aside a judgment by default is not a motion for new trial, within the meaning of the statute requiring a motion for new trial to be filed within four days after rendition of judgment. Harkness v. Jarvis, 182 Mo. 231, 81 S.W. 446; Secs. 115-116, Civil Code of Missouri. (6) The decree or judgment of July 19, 1945, was beyond the scope of and not responsive to the pleadings and awarded relief beyond that sought, and was coram non judice and void. Hecker v. Bleish, 319 Mo. 149, 3 S.W.2d 1008; Brown v. Wilson, 155 S.W.2d 176, 348 Mo. 658; Burns v. Ames Realty Co., 31 S.W.2d 274; Sinclair Refining Co. v. Wyatt, 347 Mo. 862, 149 S.W.2d 353; Secs. 1255-1257, 1268, R.S. 1939. (7) The decree should have required plaintiffs bringing into court for defendant's use the money due under the contract as a condition precedent to granting relief sought. Priest v. Oehler, 328 Mo. 590, 41 S.W.2d 783; State ex rel. Place v. Bland, 183 S.W.2d 878; Secs. 1255, 1257, R.S. Mo. 1939. (8) He who seeks equity must do equity. Jones v. McGonigle, 327 Mo. 457, 37 S.W.2d 892, 74 A.L.R. 550; Frederich v. Union Electric L. & P. Co., 336 Mo. 1038, 82 S.W.2d 79; Bates v. Dana, 345 Mo. 311, 133 S.W.2d 326.

Bradley, C. Dalton and Van Osdol, CC., concur.


Action for specific performance of contract for the sale of a tract or parcel of land in Jackson County and containing about 1.58 acres. Petition was filed August 21, 1944; no answer was filed. July 19, 1945, at the May term of the court plaintiffs introduced their evidence, and judgment by default was entered against defendant and in favor of plaintiffs. No motion for a new trial was filed, but on August 13th, still the May term, defendant filed motion to set aside the default judgment. A hearing was had on this motion August 23rd, and September 10th, the first day of the September term, the motion was overruled. October 4th, September term, the court of its own motion set aside the order of September 10th, overruling the motion to set aside the default judgment and made an order sustaining that motion. October 13th plaintiffs filed notice of appeal.

Plaintiffs are husband and wife. The contract between them and defendant for the sale of the land involved was in writing, is not dated, but was entered into in July, 1942. The consideration was $ 750, payable $ 25 cash in hand, and $ 10 on August 1, 1942, and $ 10 on or before the first day of each month thereafter, with interest at 5% per annum until payment was made in full. The interest accruing monthly was to be paid out of each monthly payment and the balance credited to principal. Plaintiffs were to have possession of the land from date of contract, and they went into possession and erected a building thereon.

The contract provided: "It is expressly understood and agreed that time is the essence of this contract and that if the buyer shall fail to pay any installment, interest, taxes, lien or other payment for a period of thirty days after said payment shall become due and payable, then the amount theretofore paid by the buyer shall, at the option of the seller, be forfeited to the seller as liquidated damages for breach of this contract, and on such default, it will be lawful and proper for the seller, or its (his) assigns, without notice, to take possession of said premises, and it is further agreed that upon such default the buyer shall then become a tenant of the seller as a tenant from month to month and agrees to pay ten and 00/100 dollars per month as rent for such premises, said rent becoming due and payable monthly in advance."

The initial payment of $ 25 was made and according to plaintiffs the payments falling due on the first day of August, September and October were made. Then plaintiff Ralph J. Wooten was inducted into the Army and Mrs. Wooten testified that she notified defendant that her husband was in the Army, and that she did not know how soon payments would be resumed; but that payments would be resumed as soon as possible. She said that in reply defendant told her "not to worry about the payments."

Plaintiff Ralph J. Wooten was discharged from the Army September 1, 1943. Mrs. Wooten testified that they called defendant after her husband was discharged; told him "we were home"; that he came by; said that "as soon as we got ready to make payments to come over and see him." That about November 27, 1943, she went over and paid defendant $ 30 on the contract; that about the last of December, 1943, she "took $ 55 over to" defendant, but he refused it, "and asked me to get out of his office." She said that she and her husband, about January 10, 1944, took $ 110 over to defendant; that this amount "would have made up all our payments in arrears to March 1, 1944"; that defendant refused the $ 110; and offered her husband $ 50 if "we would vacate the ground," but that they refused the offer. Mrs. Wooten said that on April 1, 1944, she and her husband tendered to defendant $ 900 and that this covered the whole consideration for the lot, including interest and a lumber bill they owed defendant. This too was refused, according to Mrs. Wooten.

As stated, the motion to set aside the default judgment was filed August 13, 1945. The motion alleged that the cause was filed August 21, 1944; that defendant employed counsel (not present counsel) and entered his (defendant's) appearance; that he (defendant) frequently advised with his attorney about the case and was on each occasion told that an effort was being made by counsel on both sides "to adjust the cause;" that the...

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  • Barney v. Suggs
    • United States
    • Missouri Supreme Court
    • April 2, 1985
    ...on the record and must not depend on proof beyond the record. Casper v. Lee, 362 Mo. 927, 245 S.W.2d 132 (banc 1952); Wooten v. Friedberg, 355 Mo. 756, 198 S.W.2d 1 (1946). The irregularity must indicate that the judgment was materially contrary to an established form and mode of procedure ......
  • McIntosh v. Wiggins
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    ... ... [Section 847.126 Mo. Stat. Ann.; as ... to motion to set aside under Section 1267, R.S. 1939 for ... error patent on the record see Wooten v. Friedberg, ... 355 Mo. 756, 198 S.W.2d 1.] However, the appeal from the ... judgment herein is timely, so we will disregard this part of ... ...
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    ... ... do so for the first time on appeal. Ford v. L. & N. R ... Co., 355 Mo. 362, 196 S.W. 2d 163 (1946); Wooten v ... Friedberg, 355 Mo. 756, 198 S.W. 2d 1 (1946); Gerber ... v. Schuette Inv. Co., 354 Mo. 1246, 194 S.W. 2d 25 ... (1946); Brackmann v ... ...
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