Jones v. Marble Head Lime Co. , 152 Mo. App. 79 ( 1910 )

NIXON, P. J.

A summary of the steps taken' in the litigation of which this appeal is the culmination is necessary to a complete understanding of the one question discussed herein.

(1) Riley Jones died in September, 1905, from the effects of an injury received at the lime quarry of the Marble Head Lime Company, near Sarcoxie, Jasper county, Missouri. (2) Appellant, his widow, filed suit on February 15, 1906, and the case came on for trial at the April term,- 1906', of the circuit court of Jasper county, resulting in plaintiff taking a non-suit (on April 25, 1906) with leave to fiíe a motion to set the same aside. (3) On May 1, 1906, the motion to set aside the non-suit and grant a new trial was filed. (4) This motion went over to the October- term, 1906, when it was sustained, the defendant thereupon perfecting its appeal to the Kansas City Court of Appeals. This branch of the case is discussed in" the case of Jones v. The Marble Head Lime Co., 128 Mo. App. 345, 107 S. W. 420. On January 27, 1908, the Kansas' City Court of Appeals reversed the judgment and remanded the cause with directions to the trial court to enter judgment on the non-suit because it appeared that more than four days intervened between the taking of the non-suit and the filing of the motion to set it aside and for new trial. Appellant states that the mandate from the appellate court was filed on April 1, 1908. (5) On April 28, 1908, appellant filed the case-a second time in the circuit court, and, upon trial, obtained a verdict in the sum of .one thousand five hundred dollars, but the trial court, on motion of defendant, set the same aside on the theory that the plaintiff’s action was barred by the Statute of Limitations. The plaintiff perfected her appeal to this court, but, at the March term, 1910, thereof, dismissed her appeal. (6) At the February term, 1910', of the circuit court of Jasper county, plaintiff, by leave of court, fildd an amended petition, first setting up substantially the foregoing, and then stating the facts relied on for her cause of action. -Defendant demurred to this petition, assigning the following grounds: “First. Because said amended petition shows on its face that plaintiff’s cause of action is barred by the Statute of Limitations. Second. Because said petition on its face shows that it was more than a year after plaintiff took a non-suit in said cause on the 25th day of April, 1906, before this suit was commenced.. Third. Because the proceedings after non-suit of April 25, 1906, did not have the effect of keeping alive plaintiff’s cause of action and give her the right to commence suit within one year after the judgment of the Kansas City Court of Appeals or the judgment entered in the circuit court upon the mandate from the Kansas City Court of Appeals.”

Upon the trial court sustaining this demurrer, plaintiff perfected her appeal to this court.

The statute, section 2868-, Revised Statutes 1899, as amended by Session Acts, 1905, page 137, is, in part, as follows: ‘ ‘ Every action instituted by virtue of tbe preceding sections of this chapter shall be commenced within one year after the cause of action shall accrue: Provided that if any action shall have been commenced within the time prescribed in this section, and the plaintiff therein suffer a non-suit, . . .such plaintiff may commence a new action, from time to time, within one year after such non-suit suffered. . . .”

In this case the non-suit was suffered on April 25, 1906. The Kansas City Court of Appeals has already decided that as the motion to set the non-suit aside and grant a new trial was filed after four days had intervened, such, motion should not have been considered. That is, the litigation had come to an untimely end by the plaintiff’s lack of diligence. It is rightly said in the opinion in that case that the trial court could, of its own motion, have granted plaintiff a new trial even though the motion therefor came too late, but that it could only have done so at the same term the judgment of non-suit was rendered, and that was the April term, 1906. Prom April 25, 1906, (or even from the last day of the April term, 1906) to April 28, 1908, when the case was filed the second time, more than one year had elapsed. The mere fact that at the October term, .1906, the circuit court assumed to set aside the non-suit and grant plaintiff a new trial can be of no avail to the plaintiff. Such action on the part of the trial court was entirely erroneous under the holding of the Kansas City Court of Appeals to which we have referred. So, also, in the case of Harkness v. Jarvis, 182 Mo. l. c. 239, 81 S. W. 446, the Supreme Court said that the very act of filing the motion for new trial out of time is without authority, and that even though the court should specially take up such a motion and continue it under advisement to a subsequent term, it is powerless to act, except to strike it from the files, because the filing was unauthorized and is a nullity. See, also, Childs v. K. C., St. J. & C. B. R. Co., 117 Mo. l. c. 423, 23 S. W. 373. Hence, the continuance of the case to the October term, 1906, did not suspend the finality of the non-suit and the judgment entered thereon and the circuit court lost jurisdiction of the case and the litigation was ended so far as the finality of the non-suit was concerned. The act of the circuit court in sustaining plaintiff’s motion at the October term, 1906, was wholly ineffectual, and the time consumed by the defendant in correcting this patent error cannot by any process of reasoning be taken advantage of by plaintiff in computing her one year’s time within which she might renew the action under the statute. If reason has a place in the science of law, surely this' conclusion must stand. The statute means just what it says. The non-suit was suffered on April 25, 1906, and under the authorities cited no effectual move was made by the plaintiff after that time which would suspend the finality of the judgment or give it any continuing validity. It is thus made clear that the plaintiff’s suit was barred by the statute when she attempted to renew it on April 28, 1908, and the trial court rightly sustained the defendant’s demurrer. Its judgment is accordingly affirmed.

Cox, J., concurs; Gray, J., not sitting.