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Miller v. Rothschild Management Group6/28/2005
New York , 57 S.W.3d 875, 877 (Mo. App. E.D. 2001); Klaus v. Shelby, 4 S.W.3d 635, 637-38 (Mo. App. E.D. 1999). Because that motion was not ruled on within the ninety-day period, it was deemed overruled on the ninetieth day. See Rule 81.05(a)(2)(A). Thereafter, the court did not have jurisdiction to enter its order setting the default judgment aside. See Budd v. Budd, 157 S.W.3d 229, 230 (Mo. App. E.D. 2004).
RMG claims that the first motion was abandoned when it filed the amended motion and that the amended motion should be treated as an independent proceeding to set the default judgment aside because it was filed more than thirty days after entry of the default judgment. As such, RMG contends, the court had jurisdiction to grant that motion more than ninety days later. We disagree.
A motion to set aside filed more than thirty days after a default judgment is entered is treated as an independent proceeding--separate and apart from the underlying judgment--because after thirty days a default judgment is final and the trial court no longer has control over it. See Popular Leasing , 57 S.W.3d at 878. But in this case, although thirty days had passed at the time the amended motion was filed, that motion was filed during the trial court's extended control over the default judgment by virtue of the first motion. Therefore, at that point, the default judgment was not yet final. Moreover, the amended motion merely restated the grounds for relief set forth in the first motion. The only amendment was the addition of facts learned since the first motion was filed. In this way, the amended motion was more of a supplement to the first motion rather than an abandonment of the relief sought in the first motion. See generally Rule 55.33(d) (supplemental pleading permissible to set forth events occurring since filing the pleading sought to be supplemented). Under these circumstances, the amended motion should not be treated as an independent proceeding to set aside the default judgment and should not otherwise affect the ninety-day time period in which the trial court had jurisdiction to rule on the first motion. Thus, RMG's request to set the default judgment aside--as presented in the first motion and as supplemented by the amended motion--was deemed overruled on the ninetieth day after the first motion was filed. The court's order entered several months later was entered without jurisdiction and is void. Therefore, we acquire appellate jurisdiction over that order only to determine its invalidity and dismiss the appeal. See generally Ogle v. Blankenship , 113 S.W.3d 290, 293 (Mo. App. E.D. 2003).
III. CONCLUSION
The trial court's order setting aside the default judgment is void for lack of jurisdiction, and the appeal is dismissed.
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