Opinion
No. 21330.
March 6, 1950.
APPEAL FROM THE CIRCUIT COURT FOR GRUNDY COUNTY, V. C. ROSE, J.
Nolan M. Chapman, Don Chapman, Chillicothe, for appellant.
Russell N. Pickett, Eugene E. Andereck, Pickett Pickett, Trenton, for respondent.
This appeal presents this question: Does the New Civil Code of Procedure, Laws of 1943, Sections 58, 61, 63 and 64, Mo. R.S.A. §§ 847.58, 847.61, 847.63, 847.64 require a defendant in a civil action to file an answer to the plaintiff's petition within thirty days after service of summons upon said defendant, when defendant has elected within thirty days after service of summons upon him to file a motion as provided for in Sections 61, 63 and 65, Mo.R.S.A. §§ 847.61, 847.63, 847.65, of said Act?
As a corollary to the above inquiry, also arises the question, as to whether a circuit court in Missouri has power to require by a rule of practice that an answer be filed within thirty days after summons is served upon defendant, and that the filing of a motion only within said thirty days, without timely answer, will, in the court's discretion, be taken as a default.
The facts out of which these questions arise are: Plaintiff filed his petition for damages in the Circuit Court of Grundy County, Missouri, which is in the Third Judicial Circuit, on March 26, 1949. Two days later, on March 28, a copy of the summons and petition was served upon defendant. On April 27, 1949, defendant filed in the office of the clerk of that court, its motion to dismiss and to make more definite plaintiff's petition. On April 29, 1949, plaintiff filed his motion for Interlocutory Judgment. This latter motion recited that although defendant had been duly served it had "failed to appear and file its answer within the time prescribed by Rule No. 10 of the rules of practice of the Circuit Court of Grundy County, Missouri; that said Rule No. 10 was enacted by the Circuit Court of Grundy County, Missouri, on the 10th day of January, 1949, and before the filing of this action, and provides as follows: `Rule 10. — It is expressly declared to be the policy of this court to require answer to be filed within the time limit of pleading and until otherwise expressly declared by a superior authority, the filing of a motion only, without timely answer will, in the Court's discretion, be taken as a default. Each clerk is directed to give notice wherever possible of this attitude.'"
On May 1, 1949, defendant received a copy of plaintiff's Motion for Interlocutory Judgment and notice that the same would be called up for hearing on May 6, 1949. On May 2, 1949, defendant's attorneys prepared an answer on behalf of defendant and mailed a copy to the clerk and another to the attorneys for plaintiff, which were received on May 4, 1949. On May 6, 1949, defendant's attorneys asked leave of court to file the tendered answer and offered to go to trial at any reasonable time in the future that the court might set said cause for trial. The court refused to allow defendant's answer to be filed and on the same day, May 6, 1949, entered an interlocutory judgment against defendant and then gave defendant ten days in which to plead. On May 14, 1949, defendant filed its motion to set aside the interlocutory judgment, which was sworn to and supported by affidavits, and the hearing on said motion was set for May 27, 1949. This motion was carefully drawn and, among other things, set up that defendant had a meritorious defense; that neither defendant or its attorneys had actual knowledge of said Rule 10; that said attorneys reside in Chillicothe, Missouri, and are members of the Livingston County Bar, of the 36th Judicial Circuit, in which no similar rule of practice exists and in which judicial circuit a defendant in an action may file a motion in a cause within 30 days after service of summons on him, similar to that filed by defendant herein, without filing his answer at the same time, and the filing of said motion delays the time for defendant filing answer, until 10 days after the court's action on the motion, unless the court fixes a different time; that the failure of defendant to file its answer within the period allowed by said Rule 10 was not on account of any desire or intent of its attorneys to ignore the policy and rules of the Circuit Court of Grundy County, but because of lack of actual knowledge of the adoption of said rule; said motion further set up that said Rule 10 is in conflict with and contrary to the spirit and terms of the New Civil Code of Procedure, particularly to Sections 58, 61, 62 and 64 thereof.
At the hearing, on May 27, 1949, on the motion to set aside the interlocutory judgment, defendant offered evidence tending to support its motion, and, before the court passed on it, again tendered its answer and asked leave to file the same, offering to go to trial at any reasonable time the court might set the case, which offer was refused. The court then entered its order refusing to set aside said interlocutory judgment and proceeded to hear evidence on the question of damages. On completion of the evidence, the court rendered final judgment against defendant in the sum of $2,183.32 and costs. Defendant timely filed its motion for new trial and, upon the same being overruled, prefected its appeal to this court.
In arriving at a solution of the question presented in the opening paragraph of this opinion we deem it best to set out Section 58 of the New Code. It is: "A defendant shall file his answer within 30 days after the service of the summons and petition upon him except where service by mail is had in which event a defendant shall file his answer within 30 days after the return registered mail receipt as required by Sections 28(a) and 30(b) is filed in the case, or within 45 days after the first publication of notice in case that neither personal service nor service by mail is had. If a cross-claim be filed against a party, he shall file answer thereto within 20 days after the same be filed. The plaintiff shall file his reply to a counterclaim in the answer within 20 days after filing of the answer or, if a reply is ordered by the court, within 20 days after entry of the order, unless the order otherwise directs. The filing of any motion provided for in sections 61, 62, 63 and 64 alters the time fixed for filing any required responsive pleading as follows, unless a different time is fixed by order of the court: (1) if the court denies the motion or postpones its disposition until the trial on the merits, the responsive pleading may be filed within 10 days after notice of the court's action; (2) if the court grants a motion for a more definite statement or for a bill of particulars, the responsive pleading may be filed within 10 days after the filing of the more definite statement or bill of particulars. In either case the time for filing of the responsive pleading shall be no less than remains of the time which would have been allowed under this section if the motion had not been made."
Also Section 63. It is: "A party may move for a more definite statement or for a bill of particulars of any matter contained in a petition, answer or reply which is not averred with sufficient definiteness or particularity to enable him properly to prepare his responsive pleadings or to prepare generally for trial when a responsive pleading is not required. If the motion is granted and the order of the court is not obeyed within 10 days after notice of the order, or within such other time as the court may fix, the court may strike the pleading to which the motion was directed, or make such order as it deems just. A bill of particulars becomes a part of the pleading which it supplements."
Defendant contends that the trial court erred in rendering an interlocutory judgment, adjudging defendant to be in default while defendant's combined motion to dismiss and to make more definite and certain was at the time on file and undetermined by the court. In other words, that the filing of any of the motions provided for in Sections 61, 62, 63 and 64 of the New Code postponed the time for the filing of an answer or other responsive pleading under Section 58, until action on such motions by the trial court.
There is no decision by our appellate courts directly construing Section 58. However, others who have studied the New Code, have given expression to their views.
Hon. Thomas E. Atkinson, Professor of Law, University of Missouri, in his article entitled "Parties and Pleadings in the Missouri's Proposed Code of Law Procedure" reported in Missouri's Law Review, Volume 7, No. 1, at Page 38, makes this pertinent statement in his discussion, to-wit: "It seems appropriate to illustrate the very common situation where a defendant is in doubt as to whether or not a petition fails to state a claim, or whether or not merely a more definite statement thereof should be required. In this situation, the defendant will ordinarily move both to dismiss on the first ground and to require a more definite statement or bill of particulars. These motions will be made and ordinarily heard together. If the court holds that the petition is sufficient, he will overrule both motions and the defendant will be obliged to answer. If the court holds that the petition fails to state a cause of action he will sustain the motion to dismiss, and dismissal will follow unless plaintiff amends his petition. If the court believes that the petition states a claim, but that the defendant is entitled to further information, the court will order that the plaintiff do so by filing an amended petition, or a bill of particulars, or either at defendant's option, as seems meet in the particular case."
The same writer, in his article entitled "Missouri's New Civil Procedure: A Critique of the Process of Procedural Improvement," reported in Missouri's Law Review, Volume 9, No. 1, at Page 78, paragraph 16 says: "Section 58 provides that motions under Section 61 postpone the answer date."
Hon. Lawrence M. Hyde and Hon. James M. Douglas in their discussion of the New Code, which discussion is printed in Volume II of Carr's Missouri Civil Procedure, at Page 544, Paragraph 2, under heading "Motions" make this statement:
"If any of the motions authorized by the new code are filed they must be filed within the period allowed for responding to the opposing party's pleading. Where no responsive pleading is permitted, motions must be filed within twenty days after the service of the pleading.
"Where the court overrules a motion or if the court postpones its decision on the motion until the trial on the merits, the responsive pleading shall be filed within ten days after notice of the court's action. Should the court grant a motion for a more definite statement or for a bill of particulars, the responsive pleading shall be filed within ten days after the filing of the more definitely stated pleading."
And the same authors in the same Volume of Mr. Carr's work, at Page 548, Section 11, entitled, "Effect of Motions" make the following statement:
"Timely filing of any of the authorized motions (provided for in Sections 61, 62, 63 and 64) alters the time fixed for filing any responsive pleading.
"Unless a different time is fixed by the court, (1) the responsive pleading must be filed within ten days after notice of the court's action when the court denies the motion or orders its disposition postponed until the trial on the merits: (2) where the court grants a motion for a more definite statement or for a bill of particulars, the responsive pleading must be filed within ten days after the filing of the more definite statement or bill of particulars."
Section 63 of the New Code allows a defendant to move for a more definite statement of any matter contained in a petition "which is not averred with sufficient definiteness or particularity to enable him properly to prepare his responsive pleading". Thus, this type of motion is to be filed because the defendant cannot intelligently answer the petition until his motion is passed on and a more definite statement of the facts made by the plaintiff, and, it would appear to be unreasonable, if not unjust, to require an answer to be filed where the petition is so indefinite and uncertain that defendant cannot "properly" make answer to it. To hold otherwise would defeat the very purpose of the statute.
A clear statement of the primary objectives of the New Code is found in Gerber v. Schutte Inv. Co., 354 Mo. 1246, 194 S.W.2d 25, 28, where Judge Van Osdol says: "The aim is to determine what are the controversial issues before the trial begins, and limit the trial to them." And, in referring to the petition, says: "Counsel for plaintiff has a responsibility in the furtherance of the purposes of the Code, and will be doing great service in so plainly stating the facts, if possible, that it will be unnecessary for defendant (in order to prepare responsive pleadings or to prepare generally for trial) to move for further amplification." (Italics ours.)
The last sentence of Sec. 65 reads: "Motions and pleadings may be filed simultaneously by the same party without waiver of the matters contained in either." From this it would appear that the Legislature intended, in using the language "may be filed", in view of Sec. 58, to give a defendant the privilege of filing a motion without filing an answer, or, file both a motion and an answer simultaneously. If the Legislature had intended that an answer and a motion, as provided for in Sections 58, 61, 62, 63 and 64, had to be filed simultaneously, or both within 30 days after service of summons upon defendant, we think it would have used the words "shall be filed," instead of "may be filed."
Note the language of Sec. 58: "The filing of any motion provided for in sections 61, 62, 63 and 64 alters the time fixed for filing any required responsive pleading * * *." Then consider the following language of the section that, if the court "denies" or "postpones" or "grants" the motion, the responsive pleading "may be filed * * * after notice of the court's action." It is apparent that the court must act upon the motion by either denying, postponing or granting it. And, until the court acts, the responsive pleading need not be filed.
Referring to the words in Sec. 58 "unless a different time is fixed by order of the court", plaintiff says: " In the instant case a different time has been fixed by order of the court. The trial court specifically provided by its Rule 10 that all motions and answers must be filed within the applicable responsive time for pleading." In this plaintiff is wrong. For many years prior to the adoption of our New Code the term "order of court" had been defined by our law makers as follows: "Every direction of a court or judge, made or entered in writing and not included in a judgment, is denominated an order, and an application for an order is a motion." R.S.Mo. 1939, Sec. 1238, Mo.R.S.A. "Order of the court," as used in Section 58 must have been intended by the Legislature to mean a direction of the court which is specific and limited in its application to the particular motion then before the court. An examination of numerous other sections of the New Code where the words "the order," "such order," "an order" and "every order", are used confirms this view. In other words, when the Legislature used the words, "unless a different time is fixed by order of the court", in Section 58, it undoubtedly referred to the ruling of the court on any motion filed and fixing a limit for responsive pleading after any motion was acted upon by the court.
In our opinion under the terms of Section 58 of the Code a defendant in a case is given the right to file any type of motion contemplated by said section without filing an answer until after the motion is passed on by the court. It is well settled that a circuit court does not have the power to adopt a rule of practice which deprives a litigant of a right given it by law, or which grants that right upon terms more onerous than those fixed by law. State ex rel. Hoffman v. Withrow, 135 Mo. 376, 36 S.W. 896, 1038; State ex rel. Paramount Progressive Order of Moose v. Miller, 216 Mo.App. 692, 273 S.W. 122. This is what Rule 10 does and it is void.
Defendant was not in default at the time the interlocutory judgment was rendered. It follows that the judgment should be reversed and the cause remanded to the trial court with directions to set aside its interlocutory judgment and its judgment for damages, allow defendant to file its answer, and go to trial on the merits. It is so ordered. All concur.