Russo v. Webb

674 S.W.2d 695, 1984 Mo. App. LEXIS 3997
CourtMissouri Court of Appeals
DecidedAugust 1, 1984
DocketNo. 13606
StatusPublished
Cited by9 cases

This text of 674 S.W.2d 695 (Russo v. Webb) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Russo v. Webb, 674 S.W.2d 695, 1984 Mo. App. LEXIS 3997 (Mo. Ct. App. 1984).

Opinion

PREWITT, Chief Judge.

Appellants seek the reversal of the trial court’s order striking their answer and entering a judgment in favor of respondent on the count of his petition directed against appellants.

Respondent filed a two count petition on January 29, 1982. The first count sought judgment against appellants for $25,000, contending that respondent purchased a tract of land from appellants which they represented to contain “80 acres more or less”, but was only 57.037 acres. Count two sought damages against Title Insurance Company of Minnesota based on a title insurance policy.

Various motions and other pleadings were filed and on July 12, 1982, appellants filed an answer. On December 10, 1982, interrogatories were propounded to appellants. On December 13, 1982, appellants’ attorney sought leave to withdraw, which was apparently granted. No objections were made to the interrogatories nor were answers to them filed.

On June 22, 1983, respondent filed a motion for sanctions under “Rule 61.01(b).” A copy was served on appellants. A notice calling it for hearing on August 9, 1983, and stating that respondent would request a trial setting at that time was mailed on June 22nd to appellants. At that time they apparently were not represented by an attorney in this action. On August 9, 1983, the court took up the motion for sanctions, sustained it, struck appellants’ pleadings, and set the case for trial on September 6, 1983. Apparently appellants did not appear at that hearing.

Respondent’s attorney mailed a notice to appellants on August 9, 1983, notifying them of the trial setting and informing them that on September 6, 1983, “since the Court sustained Plaintiff’s motion for sanctions on this date, and struck and dismissed pleadings of Defendants David R. Webb and Patricia A. Webb, Plaintiff will request default judgment as to said defendants.”

On September 1, 1983, appellants filed answers to the interrogatories, a motion to set aside the order striking their pleadings, an entry of appearance by an attorney, and a notice that the motion would be called up for hearing on September 6, 1983. On the latter date the trial court overruled the motion and proceeded to trial. Appellants were not allowed to participate. Respondent presented evidence and the matter was taken under advisement awaiting briefs of counsel for plaintiff and Title Insurance Company of Minnesota.

On December 5, 1983, judgment was entered against appellants for $12,917 and [697]*697costs on Count I and against respondent on Count II.

Appellants have two points relied on. They state for their first point:

“The trial court erred in overruling defendant-appellants motion to set aside order striking their pleadings for the reason that the order striking their pleadings failed to follow the proper procedure for such a sanction under Rule 61 in that there was neither a motion nor order to answer interrogatories within a certain time filed or served upon defendants-appellants as required by Rule 61.-01(b)(2).”

This point has no merit. There is no requirement under Rule 61.01(b)(1) that before sanctions there authorized are entered that there first be a motion or order compelling a party to answer interrogatories within a specified time. Rule 61.01(b) is set out below.

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Cite This Page — Counsel Stack

Bluebook (online)
674 S.W.2d 695, 1984 Mo. App. LEXIS 3997, Counsel Stack Legal Research, https://law.counselstack.com/opinion/russo-v-webb-moctapp-1984.