Opinion
No. 27828.
April 18, 1950.
APPEAL FROM CIRCUIT COURT OF THE CITY OF ST. LOUIS, WILLIAM H. KILLOREN, J.
Hay Flanagan, St. Louis, Vincent S. Moody, St. Louis, for appellant.
Cecil Block, St. Louis, for respondents.
This was an action in replevin instituted by Ivan Kidd, to recover the possession of numerous articles of household and kitchen furniture which his wife, Ruth Kidd, had removed from their home on the day of their separation and had stored with defendant Joseph Mrazek Moving Storage Company, Inc. Plaintiff recovered judgment in the magistrate court, where the suit was instituted, and later defendants recovered judgment on an appeal in the circuit court. An appeal by plaintiff to this court resulted in a reversal and remanding of the case. Kidd v. Kidd, Mo.App., 216 S.W.2d 942.
The opinion of this court reversing and remanding the case for a new trial was handed down on January 18, 1949, and the mandate from this court was filed in the circuit court on February 25, 1949.
Prior to the filing of the mandate in the circuit court but after the opinion had been handed down, and about February 5, 1949, Ivan Kidd and Ruth Kidd went to the office of Ivan Kidd's attorney, and Ruth Kidd there stated that Cecil Block no longer represented her, and at the request of Ivan Kidd a stipulation was prepared dismissing the case as to the Mrazek Company and granting a consent judgment to Ivan Kidd. This stipulation was handed to Ivan Kidd and he and Ruth Kidd left the attorney's office together. The stipulation was returned the following day, which was about February 6, 1949, signed by Ivan Kidd and Ruth Kidd and it was then signed by Ivan Kidd's attorney. At the same time a memorandum for the clerk of the circuit court for entering judgment in accordance with the stipulation was prepared and signed in the same way, and about February 8, 1949, Cecil Block, who had represented Ruth Kidd as her attorney in the litigation, was notified by Ivan Kidd's attorney of the stipulation.
Thereafter, on February 28, 1949, Cecil Block filed a motion asking to have a lien declared in his favor on the furniture involved in the litigation to secure his attorney fee as Ruth Kidd's attorney and that a reasonable fee be allowed, and on the same day Ivan Kidd's attorney filed a motion to strike said motion of Cecil Block.
Thereafter, on March 7, 1949, the stipulation for dismissing the cause as to the Mrazek Company and for a consent judgment in favor of Ivan Kidd and against Ruth Kidd was filed in the circuit court and judgment in accordance with the stipulation was entered.
On April 22, 1949, Cecil Block's motion for attorney's fee and lien was heard and submitted to the court. Thereafter, the judge who had heard the motion died, and later, on June 2, 1949, the Cecil Block motion, and a motion that day filed by Ruth Kidd to set aside the stipulation dismissing as to the Mrazek Company and consenting to judgment in Ivan Kidd's favor, were heard together.
On June 14, 1949, the court made an order sustaining the motion of Ivan Kidd to strike the motion of Cecil Block, and sustaining the motion of Ruth Kidd to set aside the stipulation.
On June 23, 1949, Ivan Kidd by his attorney filed a notice of appeal "from the special order after final judgment sustaining motion to set aside stipulation."
It is appellant's (Ivan Kidd's) contention that the court could not sustain Ruth Kidd's (respondent's) motion to set the stipulation aside for the reason that said motion was not filed until June 2, 1949, and judgment was entered on March 7, 1949.
It thus appears that the judgment was entered on March 7, 1949, in favor of the plaintiff, Ivan Kidd, and the defendant Ruth Kidd filed no motion for a new trial, or to seek relief from such judgment, or took any other action, until her motion of June 2, 1949, to set aside the stipulation which was the basis of the judgment. This was two months and twenty-five days after the consent judgment was entered. The judgment had become final thirty days after its entry, absent a motion for new trial filed ten days after the entry of such judgment. Wooten v. Friedberg, 355 Mo. 756, 198 S.W.2d 1. There was no motion for new trial, and could not have been for the reason that it was a judgment by consent. In fact, no motion of any kind was filed seeking relief from the judgment until June 2, 1949, long after the court had lost jurisdiction to grant relief from the judgment on motion. Rule 3.25 of Rules of Supreme Court.
There was a motion pending when the judgment was entered of Cecil Block for an attorney's fee and a lien. This could not be considered an after trial motion seeking relief for the judgment creditor, Ruth Kidd, as it was filed before the date of judgment, and it was seeking a relief not authorized by law for Cecil Block, who was not a party to the action. It was subject to be stricken at any time, as an unauthorized motion. Not only so, but when judgment by consent was entered Ruth Kidd had no interest in the furniture in suit to which a lien could attach. An old Latin phrase translated is "From, or out of, nothing, nothing comes."
The circuit court having lost jurisdiction by lapse of time was not authorized to sustain the motion of Ruth Kidd to set aside the judgment or the stipulation on which the judgment was based. If there was fraud in the procurement of the stipulation, as the motion alleges, no relief by motion could be awarded in a court which had lost jurisdiction over the judgment and the case.
It follows that the judgment of the circuit court entered on June 14, 1949, sustaining Ruth Kidd's motion to set aside the stipulation should be reversed. It is so ordered.
ANDERSON, P. J., and McCULLEN, J., concur.