Opinion
No. 42035.
February 12, 1951. Rehearing Denied, March 12, 1951.
The trial court erroneously sustained a motion to dismiss a second suit on the ground that the first suit was dismissed with prejudice for failure to secure costs. A motion for new trial was not necessary to preserve this issue for review.
1. JUDGMENTS: Dismissal of Prior Action for Failure to Secure Costs: Dismissal Without Prejudice: Motion to Dismiss Erroneously Sustained. Where a prior action was dismissed on the court's own motion for failure to secure costs, such dismissal was without prejudice even though the order of dismissal did not so recite. It was error to sustain the motion to dismiss the second suit on the ground that the first suit was dismissed with prejudice.
2. APPEAL AND ERROR: Motion to Dismiss Sustained: Motion for New Trial Not Required. Where the trial court sustained a motion to dismiss plaintiff's petition a motion for new trial was not required to preserve the issue for review.
Appeal from Circuit Court of City of St. Louis; Hon. Michael J. Scott, Judge.
REVERSED AND REMANDED.
Fred J.L. Schuler, Leahy Leahy, Shad R. Bennett and Joseph J. Simeone, Jr., for appellant.
(1) The laws of the State of Missouri relating to death actions expressly permit the commencement of a new action to be filed within one year after a nonsuit has been suffered. Sec. 3656, R.S. 1939; Huss v. Bohrer, 317 Mo. 204, 295 S.W. 95; Schrader v. Burkel, 260 S.W. 63; Boyd v. Logan Jones Dry Goods Co., 104 S.W.2d 348, 340 Mo. 1100. (2) The Codes of Civil Procedure cannot abridge or modify or change the substantive rights of litigants given by the common law, or by express statute. The Missouri Code of Civil Procedure cannot change substantive rights. Mo. Constitution 1945, Art. V, Sec. 5; Sec. 10, Civil Code, Laws 1943, p. 359; Act of June 19, 1934 (48 Stat. 1064); 2 Moore Fed. Prac. 26; Sibbach v. Wilson, 312 U.S. 1, 85 L.Ed. 479, 61 S.Ct. 422; State ex rel. Anderson v. Dinwiddie, 224 S.W.2d 985; 54 Am. Jur. 983. (3) Section 101 of the Civil Code of Missouri, Laws 1943, page 385, does not repeal Section 3656, R.S. 1939, or Section 1026, R.S. 1939, which authorizes the plaintiff to refile her action within one year after suffering a nonsuit. Bindley v. Metropolitan Life Ins. Co., 358 Mo. 31, 213 S.W.2d 387; Wetmore v. Crouch, 188 Mo. 647, 87 S.W. 954; Potter v. McLin, 214 S.W.2d 751; Adcox v. So. Ry. Co., 184 S.W.2d 37.
Coburn, Storckman Croft and Clem F. Storckman for respondent.
(1) Both the trial and appellate court will take judicial notice of the record proceedings in the prior case. Thompson v. Scott, 19 S.W.2d 1063; Knorp v. Thompson, 175 S.W.2d 889. (2) A circuit court has jurisdiction on motion of the clerk of the court to require a plaintiff to secure the costs and to dismiss the case for failure so to do. Sec. 1402, R.S. 1939. (3) It is immaterial whether we are dealing with substantive law or procedural law since the laws under construction were all passed by the General Assembly of Missouri and there can be no question of its authority to do so. Bindley v. Metropolitan Life Ins. Co., 213 S.W.2d 387, 358 Mo. 31. (4) Section 847.101 employs very broad and inclusive language and being the latest pronouncement of the Legislature should be construed to be controlling in the event there is a conflict with other statutes. Dohring v. Kansas City, 71 S.W.2d 170; Worthington v. City of Monett, 204 S.W.2d 264; Smith v. Pettis County, 136 S.W.2d 282, 345 Mo. 839; State on inf. McKittrick v. Wymore, 132 S.W.2d 979, 345 Mo. 169; State ex rel. Jacobsmeyer v. Thatcher, 92 S.W.2d 640, 338 Mo. 622; Cummins v. Kansas City Pub. Serv. Co., 66 S.W.2d 920, 334 Mo. 672; 59 C.J. 1042. (5) The action of the trial court is supported by the decisions of the appellate courts of Missouri. Hannibal v. St. Louis Pub. Serv. Co., 200 S.W.2d 568; Bindley v. Metropolitan Life Ins. Co., 213 S.W.2d 387. (6) Since the plaintiff did not file a motion for new trial after entry of the judgment of April 18, 1950 there is nothing presented to the Supreme Court for review and the appeal should be dismissed. Supreme Court Rule 3.23; Coyne v. Southwestern Bell Tel. Co., 232 S.W.2d 377; Donati v. Gualdoni, 216 S.W.2d 519, 358 Mo. 667; Johnson v. Kansas City Pub. Serv. Co., 214 S.W.2d 5, 358 Mo. 253.
Plaintiff commenced an action for $10,000.00 damages, for wrongful death of her husband, which was dismissed, September 24, 1948, for failure to give security for costs. Plaintiff commenced this present suit on the same cause of action on August 1, 1949, as authorized by Sec. 3656, R.S. 1939, now 537.100, R.S. 1949. Defendant's motion to dismiss (on the ground that the order did not recite the dismissal was without prejudice) was sustained and plaintiff has appealed from this judgment of dismissal.
Plaintiff's previous action was filed June 4, 1946. A motion for security for costs, filed by the Circuit Clerk and Sheriff, was sustained on June 18, 1946 and plaintiff given ten days to give bond or deposit $40.00. Plaintiff did not comply and the case was put on the dismissal docket. Nothing else was done until September 14, 1948 when on application of plaintiff's attorney the Court made the following order: "It is ordered by the court upon oral motion of the plaintiff, by attorney, that this cause be removed from the dismissal docket of September 14th, 1948, and reinstated on the trial docket on application, and doth further order that the plaintiff be granted ten days from this date to secure the costs herein."
Plaintiff did not comply with this order and on September 24, 1948 the Court made the following order of dismissal: "It appearing to the satisfaction of the court that the plaintiff has failed to comply with the order heretofore entered herein on the 14th day of September, 1948, requiring plaintiff to give security for costs, it is ordered by the court that this cause be, and the same is, hereby dismissed, for such failure, at the cost of plaintiff, for which let execution issue."
The decisive question herein is whether the dismissal of plaintiff's first action was a final adjudication upon the merits under Sec. 101 of the 1943 Code. (Sec. 510.150 R.S. 1949.) Although the parties have briefed other matters, we think this should be decided upon the construction of the applicable provisions of the Code. Sec. 101 is as follows: "A dismissal without prejudice permits the party to bring another action for the same cause, unless the action is otherwise barred. A dismissal with prejudice operates as an adjudication upon the merits. Any voluntary dismissal other [155] than one which the party is entitled to take without prejudice, and any involuntary dismissal other than one for lack of jurisdiction or for improper venue shall be with prejudice unless the court in its order for dismissal shall otherwise specify."
The part of Sec. 101, concerning involuntary dismissals must be read and construed with Sec. 100 (Sec. 510.140 R.S. 1949), the first sentence of which is: "For failure of the plaintiff to prosecute or to comply with this code or any order of court, a defendant may move for dismissal of an action or of any claim against him." This language comes from Federal Rule 41; the first sentence of Sec. 100 and the substance of Sec. 101 is contained in subsection (b) thereof. However, our Sec. 99 (Sec. 510.130 R.S. 1949) permits one voluntary dismissal without prejudice as a matter of right, which is not true of the Federal Rule. Thus our practice is more lenient than the Federal Rule and this accounts for difference in the language used. Nevertheless, in the Federal Courts, "local rules commonly provide for an entry of dismissal, without prejudice, by the clerk, after the lapse of a specified period of time without any affirmative action to keep the particular suit or claim in progress." (7 Cyclopedia of Federal Procedure, 2d Ed. 392, Sec. 3248.)
In Bindley v. Metropolitan Life Ins. Co., 358 Mo. 31, 213 S.W.2d 387, we held that a dismissal on the Court's own motion, without motion of the other party and notice, did not operate as an adjudication of the merits of the cause, but that "the `involuntary dismissal' referred to in Section 101, . . . which shall be `with prejudice unless the court in its order for dismissal shall otherwise specify' necessarily means an `involuntary dismissal' with notice and an opportunity to be heard, and not a mere termination of the action by the court in the absence of the parties pursuant to some local court rule." We pointed out that Sec. 100 "provides that a defendant may move to dismiss for failure of the plaintiff to prosecute" and that "such motions require notice and a hearing or an opportunity to be heard, where the party is not in default for failure to appear." Sec. 100 also provides that a defendant may move to dismiss for failure of plaintiff to comply with any order of court, which would include an order to give security for costs. Therefore, following the rule of the Bindley case, we must hold that the dismissal here on the Court's own motion, without motion of defendant or notice that the court would act or be requested to act to dismiss the case for that reason, is not a dismissal with prejudice.
We think this is a reasonable construction of Sec's. 100 and 101 construed together, as to involuntary dismissals, and that a motion with notice is contemplated by the Code to make an involuntary dismissal an adjudication of the merits. The Court's authority to dismiss on its own motion does not come from the Code but is inherent; the only question is as to its effect. These provisions of our new Code are more drastic than our former procedure but this is in keeping with its purpose to prevent undue delay and to make prompt disposition of cases. Nevertheless, to prevent injustice, it is important for the plaintiff to have an opportunity to present his claim to have an involuntary dismissal ordered without prejudice. The Code makes this discretionary with the Court and where it appears that plaintiff could not have a case or has abandoned it for a long period of time or is not acting in good faith and only seeks to harass the defendant, it could properly be denied. (7 Cyclopedia of Federal Procedure 402, Sec. 3251.) Of course, as stated in the Bindley case, when the case is definitely set for trial and the plaintiff makes default by failure to appear, as in Hannibal v. St. Louis Public Service Co., (Mo. App.) 200 S.W.2d 568, he already has notice that some action must be taken and nothing more is required. Therefore, our conclusion is that a dismissal on the Court's own motion without a motion of the defendant and notice thereof, or without notice and opportunity to be heard on the question of whether the dismissal should be without prejudice, is not with prejudice and does not constitute an adjudication on the merits; and it will not prevent filing a [156] new action within one year under Sec. 537.100 or Sec. 516.230 R.S. 1949.
Defendant also contends that this question is not preserved for review because plaintiff filed no motion for a new trial, citing our Rule 3.23. However, no motion for a new trial is necessary to preserve for review the propriety of the Court's decision in this kind of a proceeding. (See Seabaugh's Dependents v. Garver Lumber Mfg. Co., 355 Mo. 1153, 200 S.W.2d 55, l.c. 63.) It is the same as a non jury case in which, under Sec. 114 of the Code (Sec. 510.310 R.S. 1949), "the question of the sufficiency of the evidence to support the judgment may be raised whether or not the question was raised in the trial court."
The judgment is reversed and the cause remanded. All concur.