Opinion
No. 6937.
April 24, 1950. Rehearing Overruled May 19, 1950.
APPEAL FROM THE CIRCUIT COURT, TANEY COUNTY, TOM R. MOORE, J.
Gideon Mahnkey, Forsyth, Rogers Rogers, Gainesville, for appellant.
J. R. Gideon, A. H. Blunk, Forsyth, Joseph C. Crain, Ozark, for respondents.
After an unsuccessful attempt to invoke the appellate jurisdiction of the Supreme Court, this case comes to our Court for decision.
The petition was filed in the Circuit Court of Taney County, Missouri, September 22, 1947. Plaintiff (appellant) sought a mandatory injunction requiring defendants (respondents) to remove certain obstructions on a private roadway, over land owned by defendants, over which plaintiff claimed he had prescriptive rights.
Defendants filed their motion to dismiss the petition of plaintiff, on the ground that such petition did not state facts sufficient to constitute a cause of action. The transcript does not show that any action was taken by the trial court on such motion. At any rate, and on the same day (October 22, 1947), defendants filed their answer, asserting that the matters alleged in the petition of plaintiff had been fully litigated in the County Court of Taney County, and, in addition, denying the allegations of such petition. The transcript is silent as to what took place in the County Court of Taney County. No reply is disclosed by the transcript and, on December 6, 1947, the case went to trial before the trial judge on the issues involved in the petition and answer.
Plaintiff introduced a number of witnesses, whose testimony tended to show that the particular roadway over defendants' lands had been subjected to use by plaintiff, or by his ancestors or transferors, as a highway for many years previously; while defendant produced a number of witnesses, whose testimony tended to show that the obstructions on the highway had been put thereon within a short time before the trial, and less than ten years previously thereto, and that the respective owners thereby showed their objections to their lands being so used.
It is almost impossible, from the testimony set out in the transcript, to determine exactly where the claimed prescriptive roadway was located, further than its general direction. For example, it ran about a half mile north along the east side of one of the defendants' land, and thence over the lands of other defendants, in a northeasterly direction, near a certain named school house, and thence to Highway 125. It was shown by many witnesses that plaintiff or his ancestors or transferors, used the particular highway for many years in going to the post office, to church, to the county seat and to market.
To show the utter confusion that existed in the mind of the trial court, we find in the transcript the following agreement of the parties, after the testimony was all in, to-wit: "By consent of all parties, Plaintiff and Defendants, the Court is permitted to go upon said road in controversy and to view the same. Said cause is therefore, passed for final determination until the next regular term of this Court."
Evidently, the trial judge, in addition to his other arduous duties, did not find time to make such inspection at the trial term, for the transcript shows that the case was passed over the April and June Terms.
On October 18, 1948, the trial court, among other things, in an order, provided that, "a limited easement with gates for a private road by prescription eleven feet wide on the route petitioned by them over defendants' land and over the route which the judge of this Court viewed while visiting the premises, the gates being 3 in number."
Part of the order apparently suited plaintiff, but he did not like so well other provisions, denying a mandatory injunction, and permitting defendants to maintain the gates, they had previously erected along such roadway, with the further requirement that plaintiff should always close such gates after use.
Plaintiff filed his motion for a new trial on October 26, 1948. Such motion was withdrawn by him on December 13, 1948.
On December 8, 1948, the plaintiff filed his affidavit in citation for contempt, alleging that defendant Jesse Rozell had violated the order of October 18, 1948.
On December 14, 1948, the trial court, by agreement of plaintiff and defendants, attempted to modify the judgment of October 18, 1948, still attempting to give plaintiff an easement over the claimed prescriptive highway, and giving defendants the right to maintain obstructions, on such alleged prescriptive highway, and adjudging defendant Jesse Rozell not guilty of contempt. He made a long finding of facts, and entered another judgment and decree.
On December 23, 1948, the transcript shows that the plaintiff refiled his motion for a new trial. That motion was in the exact language of his motion for a new trial, filed on October 26, 1948, and which he afterwards withdrew.
The transcript does not show any ruling by the trial court on the refiled motion for a new trial. If it had any effect, it was deemed overruled for all purposes after 90 days. Section 118, Laws of 1943, page 389, Mo.R.S.A. § 847.118.
Plaintiff was granted an appeal to the Supreme Court of Missouri on March 23, 1949, and the case is now for our consideration, after transfer here by the Supreme Court.
The trial court had no power over its judgment longer than 30 days after it was rendered. Section 119, Laws of 1943, page 389, Mo.R.S.A. § 847.119, provides: "Not later than 30 days after entry of judgment, the court of its own initiative may order a new trial for any reason for which it might have granted a new trial on motion of a party, and every order granting a new trial shall specify the grounds therefor."
The Supreme Court of Missouri has also provided, in Rule 3.25, as follows: "The trial court retains control over judgments during the 30-day period after entry of judgment and may reopen, correct, amend or modify its judgment for good cause within that time. * * *"
Defendants cite Rosbrugh v. Motley et al., Mo.App., 216 S.W.2d 165, 170. Speaking for this Court and with the concurrences of Vandeventer, P. J., and McDowell, J., and written by the author of this opinion, we said: "The trial court had no jurisdiction on November 21, 1947, until another case had been filed, to issue any citation for contempt of court against defendants Rolland Motley and Reybourn Motley, no matter if they did go upon said forty foot strip and attempt to keep it open as a public road."
We held in that case that the trial court had no power to act on defendants' motion for new trial "even upon an agreement of the parties."
On December 14, 1948, the trial court attempted to modify its judgment of October 18, 1948, by agreement of the parties, and this he was powerless to do. The attempted appeal on March 23, 1949, was from a judgment which the trial court had no power to render at that time.
Such appeal is utterly void and should be dismissed. We so order.
VANDEVENTER, P. J., and McDOWELL, J., concur.