Jameson v. Hilton

BOND, J. — Plaintiff had judgment against defendant [300] in a justice court for $250. Johm H. Kinsey became surety on an appeal bond given by defendant to take the case to the circuit court, which court on defendant’s motion subsequently ruled plaintiff to give security for costs, and upon his failure to comply with such order sustained a motion to dismiss the cause and awarded execution. After the lapse of two regular terms of court following the dismissal of his suit, plaintiff filed a motion to set aside the judgment of dismissal and reinstate the cause. No notice of this motion was given to defendant, but it was sustained, and thereupon the court affirmed the judgment of the justice and gave judgment for the amount thereof against John H. Kinsey, the surety on defendant’s appeal bond, and awarded execution. The said surety moved to quash this execution, appearing specially for that purpose only. His motion was overruled, and he appealed to this court. The action of the learned circuit judge can only be upheld on the theory of the correctness of his ruling in setting aside the judgment of the dismissal of plaintiff’s suit and the reinstatement thereof upon the motion to that effect made by plaintiff during the third term of court following that in which the final judgment of dismissal had been entered. If he had the power to take this course, the judgment of affirmance thereafter was entirely valid, and there wais no error in denying a motion to quash an execution issued thereon. It is insisted that the statute permitting a motion to set aside a judgment in any court of record for “irregularity” if made within three years after the term at which the judgment was rendered (R. S. 1899, see. 795), entitled the motion in question to be filed in this case, and that the circumstances attending the dismissal of plaintiff’s suit constituted an “irregularity” in the statutory sense. We are unable to concur in this view. Clearly it was error on the part of the trial court-to require plaintiff, who was the appellee in a case originating [301] before a justice, to give security for costs, since tbe statute expressly exempted tbe plaintiff from sucb a requirement (R. S. 1899, sec. 1544). Nor should tbe suit of -plaintiff bave been dismissed for noncompliance with tbe order as to costs. But each of these rulings of tbe trial court were regularly made while it was in full possession of jurisdiction of tbe persons of tbe litigants and tbe subject-matter of tbe action, and might bave been corrected upon appeal or writ of error. Neither of them were “irregularities” on tbe face of tbe proceedings subjecting tbe judgment to attack by motion filed within three years after its rendition. Eor the court did not violate any “prescribed rule or mode of procedure” in its ruling on tbe motion for costs, or in its dismissal of tbe suit. It simply erred as to both in a matter of law. Sucb errors of judicial discretion are not correctable after tbe lapse of tbe term under tbe authority given by tbe statute to set aside judgments for “irregularity.” State ex rel. Ozark County v. Tate, 109 Mo. loc. cit. 270; Orvis v. Elliott, 65 Mo. App. loc. cit. 100-101; Harbor v. Railroad, 32 Mo. 423; Hirsh v. Weisberger, 44 Mo. App. loc. cit. 509; Danforth v. Lowe, 53 Mo. 217; State ex rel. v. Harper, 56 Mo. App. 611. It follows that, under tbe rule limiting tbe power of courts over their judgments or decrees, regularly rendered, to tbe duration of tbe term at which they áre entered (in the absence of a motion filed at that term and continued over), tbe judgment of tbe trial court setting aside its previous dismissal of plaintiff’s action and reinstating tbe same, was a simple nullity for want of jurisdiction to render it, and therefore tbe motion to quash an execution issued thereon should bave been sustained. James and Ray, Ex parte 59 Mo. 280; Gerhart v. Brady, 72 Mo. App. 138, and cases cited. Tbe judgment of tbe circuit court is reversed and tbe cause remanded, with directions to proceed in conformity with this opinion. All concur.