The Eastern District in Klaus I premised its holding that a motion to set aside a default judgment filed before the trial court lost jurisdiction over the underlying default judgment is essentially a motion for new trial (an authorized after-trial motion) upon the following: In 1993, the Missouri Supreme Court in Taylor v. United Parcel Service, Inc., 854 S.W.2d 390 (Mo. 1993), quoted with approval its holding in In re Franz' Estate, 359 Mo. 362, 221 S.W.2d 739, 740 (Mo. 1949) that "a motion to set aside a default judgment 'was nothing more than a motion asking the trial court to reconsider its ruling and to set aside its dismissal order. It was, in fact, simply a motion for rehearing or new trial.
Id. at 392. In reaching this conclusion, the Court cited In re Franz' Estate, 359 Mo. 362, 221 S.W.2d 739, 740 (1949), for the proposition that "a motion to set aside a default judgment `was nothing more than a motion asking the trial court to reconsider its ruling and to set aside its dismissal order. It was, in fact, simply a motion for rehearing or new trial.
Britian v. Fender, supra, 116 Mo.App. 93, 96, 92 S.W. 179. Respondents rely particularly upon In re Franz' Estate, 359 Mo. 362, 221 S.W.2d 739, 740, where the appellants had filed a claim in the probate court for 5% of the corpus of a trust estate as compensation for services rendered as trustees and the claim was dismissed for want of jurisdiction of the probate court over the subject matter of the claim. This court held that a court of equity and not the probate court was the proper forum in which to settle the controversy.
Under the authority of Re Estate of Sophie Franz, deceased. Claim of G.A. Franz and G.A. Buder, 359 Mo. 362, 221 S.W.2d 739, involving identical legal issues, defendant's motion to dismiss the appeal on the ground plaintiffs' Notice of Appeal was not filed within 10 days after the judgment had become final (Laws 1943, p. 390, § 129; Mo. R.S.A., § 847.129) is overruled. Laws 1943, p. 388, §§ 116, 118, Mo. R.S.A., §§ 847.116, 847.118; Rule 3.
Grooms v. Grange Mut. Cas. Co., 32 S.W.3d 618, 620 (Mo.App.E.D. 2000). This approach is consistent with that taken in Taylor v. United Parcel Service, Inc., 854 S.W.2d 390 (Mo. banc 1993), where our Supreme Court reaffirmed its decision in In re Franz' Estate, 359 Mo. 362, 221 S.W.2d 739 (1949), which interpreted the predecessor to Rule 81.05 and held that "a motion to set aside a default judgment `was nothing more than a motion asking the trial court to reconsider its ruling and to set aside its dismissal order. It was, in fact, simply a motion for rehearing or new trial.
Rule 78.06 and Rule 81.05. In 1993, the Missouri Supreme Court in Taylor v. United Parcel Service, Inc., 854 S.W.2d 390 (Mo. 1993), quoted with approval its holding in In re Franz' Estate, 221 S.W.2d 739, 740 (Mo. 1949) that "a motion to set aside a defaultjudgment `was nothing more than a motion asking the trial court to reconsider its ruling and to set aside its dismissal order. It was, in fact, simply a motion for rehearing or new trial.'" Id. (quoting In re Franz' Estate, 221 S.W.2d at 740) (emphasis added).
That premise is incorrect. In In re Franz' Estate, 221 S.W.2d 739, 740 (Mo. 1949), the Missouri Supreme Court held that a "Motion to Set Aside [an order of dismissal]" was nothing more than a motion asking the trial court to reconsider its ruling and to set aside a dismissal order; it was, in fact, simply a motion for a rehearing or new trial. Similarly, in Taylor v. United Parcel Service, Inc., 854 S.W.2d 390, 393 (Mo.banc 1993), the Missouri Supreme Court held that it was appropriate to treat a motion entitled "Motion to Reconsider the Order of the Court Granting Defendant's Motion for Summary Judgment" as a motion for new trial because it placed before the trial court allegations of error in the trial.See alsoMassman Construction Co. v. Missouri Highway Transp.
The Taylors' motion, despite its odd style, places before the trial court allegations of error. It is, therefore, appropriate to treat it as a motion for new trial filed pursuant to Rule 81.05. This conclusion is consistent with In re Franz' Estate, 359 Mo. 362, 221 S.W.2d 739, 740 (1949). In Franz' Estate, this Court held that a motion to set aside a default judgment "was nothing more than a motion asking the trial court to reconsider its ruling and to set aside its dismissal order. It was, in fact, simply a motion for rehearing or new trial."
It must be held that there was never any ruling upon the motion to set aside the summary judgment other than by the automatic operation of Rule 82.05 (a), V.A.M.R. — ninety days after the filing of the motion. In the case of In re Franz' Estate, 359 Mo. 362, 221 S.W.2d 739, 740 [1], respondents filed a motion to set aside an order of dismissal of a claim for trustee's compensation. It was held that the motion was nothing more than a motion asking the court to reconsider its ruling. "It was, in fact, simply a motion for rehearing or new trial."
There could be circumstances, of course, of unusual or extraordinary character in the matter of the services rendered which would justify a court in departing from the general practice of allowing trustees' commissions only out of the yearly income received and disbursed. That, however, is a question for the court to determine in each such case before it. * * *" (emphasis supplied). The rule of the Buder case was reaffirmed in In re Franz' Estate, 359 Mo. 362, 221 S.W.2d 739, 741-742 and in Morrison v. Asher (Mo.App.) 361 S.W.2d 844, 851. The rule was earlier applied in Kilpatrick v. Robert, 278 Mo. 257, 212 S.W. 884; Cornet v. Cornet, 269 Mo. 298, 190 S.W. 333 and In re Mays' Estate, 197 Mo.App. 555, 196 S.W. 1039.