Head v. Randolph

83 Mo. App. 284, 1900 Mo. App. LEXIS 167

• Court: Missouri Court of Appeals
• Decided: February 27, 1900
• Status: Published

Opinions

ELAND, P. J.

Suit is on a promissory note. Defendant filed an answer at the December term, 1897, and the cause was continued to the succeeding term (June, 1898) on the motion of defendant. At the June term there was a mistrial and the cause went over to the December term, 1898, on the motion and at the cost of defendant, with leave to defendant to file an amended answer. At the December term, 1898, and on the eighth day of the month, the cause was called for trial. The defendant had not filed an amended answer, and was not present. His attorney, when the case was called, stated to the court, that the defendant was certainly sick, or for some other good and sufficient reason was prevented from attending the trial, and asked that the case be passed. Thereupon the court announced that the case would not be passed, but if the matter suggested by the counsel should prove to be true, the judgment would be set aside. Whereupon the cause was submitted to the court without objection, and judgment was rendered for plaintiff. On December 20 — twelve days after the rendition of the judgment — defendant appeared and filed his motion for a new trial, on the ground that he had a good defense to the plaintiff’s cause of action, and that he was finable to attend the trial on account of his illness. In support of the motion the defendant’s attorney on December 22 made and filed liis affidavit stating that “defendant was prevented from attending said term on account of sickness, and that affiant believes defendant had a just and proper defense to plaintiff’s cause of action, and that on account of defendant’s sickness affiant was unable to communicate witb him and file an amended answer in said cause, not being able to learn the facts upon which defendant relied.” On the following day the attorney for defendant filed his second affidavit, setting out in detail the facts constituting the defense. Nothing further was done, nor were any further orders made in the cause during the December term. At the succeeding June term, 1899, the defendant appeared and filed a certificate of a physician that i£he was sick during the month of December, 1898, and unable to attend to business.” Afterwards during the term, the motion for rehearing was taken up and by the court sustained, on the first and third grounds stated in the motion, to wit:

First. “Because the defendant was unable to be present at the December term of said circuit court on account of sickness of the defendant.

Third. “Because it was necessary for the defendant to be present at the trial of said cause in order to make a proper defense thereto, and defendant was sick and 'unable to be present at said trial, at any time during the said December term, A. D. 1898, of this court.”

Plaintiff appealed.

A trial court has the undoubted authority at any time during the term at which a judgment was rendered, if the trial judge believes a fair trial has not been had, or for any cause there has been a failure of justice, to set aside the judgment and grant a new trial, of its own motion, or on a motion for new trial. Scott v. Smith, 133 Mo. 618; Ensor v. Smith, 57 Mo. App. 585; Wight v. Railroad, 20 Mo. App. 481. And it may set aside a judgment for cause and grant a new trial, even though the motion was filed out of time, if done before the adjournment of the term at which the judgment was rendered. Nelson v. Ghislin, 17 Mo. App. 663; McLaran v. Wilhelm, 50 Mo. App. 658; Anderson v. Perkins, 52 Mo. App. 527; Martin v. Tobacco Company, 53 Mo. App. 655. But after tbe lapse of tbe term, tbe court loses jurisdiction over the cause and has no authority to set aside tbe judgment. Danforth v. Lowe, 53 Mo. 217; Childs v. Railroad, 117 Mo. 414; State ex rel. v. Harper, 56 Mo. App. 611; Orvis v. Elliott, 65 Mo. App. 96. To carry a cause over from one term to a succeeding one, on a motion for new trial, tbe motion must have been filed witbin tbe statutory period allowed for filing tbe same, to wit, witbin four days from tbe rendition of tbe judgment. Childs v. Railroad, supra. Had tbe motion filed in tbis case been taken up and submitted and taken under advisement by tbe court until tbe succeeding term, there would be no question as to tbe regularity of its proceeding. But tbis was not done. Tbe motion for new trial and tbe affidavits in support, were simply filed — not even an order continuing tbe motion was made by tbe court, so there was nothing filed, nothing done at tbe December term, 1898, to continue tbe jurisdiction of tbe court over tbe cause to tbe succeeding June term. "We therefore conclude that when tbe order was granted sustaining tbe motion for a new trial, tbe court was without jurisdiction to make tbe order, and reverse tbe judgment.

Judge Bond concurs. Judge Biggs dissents!