State ex rel. State Highway Commission v. Gould

ON MOTION FOR REHEARING

PER CURIAM:

On motion for rehearing, the Merchants-Produce Bank and Sheldon P. Sandler, Trustee, assert that the opinion in this case is in error in overlooking and misinterpreting the facts by holding that defendant Merchants-Produce Bank and Sheldon P. Sandler, Trustee, acquiesced in the continuances of the case.

*181They point to an affidavit filed by the trustee which asserted that he had no knowledge of the continuances, never consented to a continuance, and was never present in court on the case except on August 2, 1976. In the suggestions in support of the motion, this argument is buttressed by asserting that the transcript shows an admission by the Highway Commission both as to the question of notification and question of consent. The only admission contained in the cited portion of the transcript was that neither the bank nor the trustee had ever sought a continuance.

However, the more important fact is that this case was pending in Clay County and, subsequent to the change of venue, in Caldwell County during the period of time when § 478.205 RSMo 1969, now repealed effective January 2, 1979, 478.225 RSMo 1969, 478.213 RSMo 1959, and 478.315 RSMo 1969, all now repealed effective January 2, 1979, were in effect. These statutes provide for the time for holding courts in those counties, traditionally known and accepted by the lawyers of this state as the “first day of the term,” at which time dockets are published or called and case settings arranged.

The record discloses that at least some of the protracted proceedings in this case occurred at the “next regular civil docket call” in the Caldwell County Circuit Court. Significantly, neither the Bank nor the Trustee assert that they had no notice of the pendency of the case on the docket.

A party to litigation has a duty to keep abreast of all proceedings in a case after service of process until final judgment. Cohen v. Ennis, 318 S.W.2d 310 (Mo. banc 1958); Meadowbrook Country Club v. Davis, 384 S.W.2d 611 (Mo.1964). Cohen stated the rule as follows:

“ ‘ “A party over whom a court has obtained jurisdiction must take notice of all proceedings until final judgment is rendered, but after judgment he is not regarded as being before the court, and should have notice of any subsequent proceedings which affect his rights.” ’ ” 318 S.W.2d at 316

It can only be said in this state of the record that the Merchants Produce Bank and Sheldon P. Sandler acquiesced in whatever was occurring in the case by utterly failing to pay any attention to the case until 1976.

The motions for rehearing and for transfer are denied.