Granite Bituminous Paving Co. v. Park View Realty & Improvement Co.

196 S.W. 1142, 270 Mo. 698, 1917 Mo. LEXIS 58

• Court: Supreme Court of Missouri
• Decided: June 30, 1917
• Docket: Nos. 17593, 17594 and 17595
• Status: Published

Opinions

GRAVES, C. J.

— These three cases are actions upon special tax bills. In each the lower court found for the plaintiffs. Appeals were taken to the St. Louis Court of Appeals, where the three were seemingly heard as one case, and they are so submitted here. The eases are in a very peculiar situation here. Upon a hearing in the Court of Appeals the judgments in the lower court were reversed, Caulfield, J., not sitting.

Motions for rehearing were filed, and evidently the two sitting judges who had joined in reversing the judgments divided in opinion, or at least one of them was shaken in his views. The result was that the motions for rehearing were set down for argument, and Hon. R. E. Rombauer in some manner appeared as special-judge on this hearing had upon the motions for rehearing. The result of this hearing upon the motions for rehearing is thus expressed in the judgment before us:

“Now again come the said parties by their respective attorneys and the court having fully considered respondent’s motion for rehearing doth order that same be sustained, and that the judgment of reversal heretofore entered herein be set aside and for naught held and esteemed; and that said cause be remanded to said circuit court, city of St. Louis, with directions to that court to strike from the record so much of the judgment entry of that court as contains the words ‘with interest at the rate of' eight per cent per annum from the date of the judgment until paid,’ and that the judgment thus amended, stand in full force and effect; and that said respondent recover of said appellants its costs and charges herein expended and have execution therefor. Opinion filed. But as Judge Nortoni deems the opinion of this court to be in conflict with the decision of the Supreme Court in the case of Morey Engineering & Construction Co. v. St. Louis Artificial Ice Rink Co., 242 Mo. 241. 146 S. W. 1142, and with that of the Kansas City Court of Appeals in the case of Forrey v. Holmes, 65 Mo. App. 114, and asks that this cause be certified to the Supreme Court for a final determination, it is so ordered. Dissenting’ opinion by Nortokt, J., filed. ’ ’

Judge Rombauer wrote the. opinion on the motion for rehearing, and properly styles it thus: “Opinion on Motion for Rehearing.”

It should be noted that the first judgment of the Court of Appeals is an absolute judgment of reversal, and further that the last attempted judgment is one of affirmance, with a slight modification of the judgment nisi as to interest. It must be further noted that the judgment before us shows that the court granted a rehearing and that without á rehearing in fact or in law, instantly entered up a new and different judgment. So speaketh the only record before us.

In one breath the Court of Appeals says you are entitled to a rehearing of your case upon its merits, and in the nest breath it enters, instanter, another and directly opposite judgment, without a further resubmission of the cause and without a rehearing in fact, after the motion for rehearing was sustained. By the same opinion such court both grants’ a rehearing and enters a new judgment. That the court had the right to hear argument on the motion for rehearing there can be no question. That with only two sitting judges in the case,' a condition might 'arise which would call for the selection of a special judge there is no question. The trouble with the record is that it shows that there was no rehearing and no re-submission for judgment, after the motion for rehearing was sustained. "When a rehearing is granted, it means what the term “rehearing” indicates, i. e. that the case is for re-argument and resubmission, before judgment can be entered therein. We do not mean that a prior judgment and opinion cannot be modified upon a motion for rehearing, and the motion then overruled, for that is often done in appellate practice, but what we do mean is, that when, upon a hearing had upon a motion for rehearing (whether that hearing be upon oral argument or otherwise) the said motion for rehearing is sustained, then no new judgment can be rendered without a re-submission and actual rehearing of the cause. At least, • absent a resubmission, no new judgment can be'entered after a motion for rehearing has been sustained. The sustaining of such motion leaves the case just where it was when filed in the court.'

This exact point has not been ruled in this State, so far as -1 find, but an analogous question has been specifically ruled. Thus in Hurley v. Kennally, 186 Mo. 225, we had before us a case in equity. Upon a trial nisi the chancellor found for the defendant and so entered his judgment. Upon motion for a new trial being filed by plaintiff he heard the motion, and sustained the same, and immediately entered judgment for the plaintiff on the merits. The cause was appealed here as indicated above, and Valliant, J., said:

“But when the motion for a new trial was sustained, the cause was at issue for trial again, the court had no authority to enter a judgment without another trial.

“Granting a new trial put the case in condition, so far as that court was concerned, as if there had never been a trial, and no judgment could thereafter be rendered upon the merits until a trial was had.”

In principle the point there decided is the point here in issue. In 3- Cvc. 219, the rule is thus stated:

“When a rehearing is granted, generally, the cause is before the court for examination and decision as though it had never been considered and decided.”

It follows that the judgments of affirmance entered in these cases without re-submission and rehearing, after motions for rehearing, had been sustained, are cor am non-judice, and void, and the cases are yet before that court for final determination. The court was without jurisdiction to enter a judgment of affirmance upon the mere hearing held upon a motion for rehearing directed to a judgment of reversal.

To the end that they may be finally determined by that court, we remand the cases to the St. Louis Court of Appeals.

All concur, except Williams, J., not sitting, and Bond, J., who dissents in opinion filed.