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West v. Director of Revenue7/13/1999
This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.
Appeal From: Circuit Court of St. Louis County, Hon. Robert Cohen
Opinion Vote: AFFIRMED. Dowd, Jr., C.J., and Pudlowski, J., concur.
Harold West (Driver) appeals the judgment setting aside a consent judgment reinstating driver's license. We affirm.
Driver was arrested on October 2, 1997 for driving while intoxicated. After he refused to submit to a chemical breath test, Director revoked his driving privileges pursuant to section 577.041, RSMo Cum. Supp. 1997. Director mailed notice of the revocation to Driver, advising him that he must file a Petition for Review within 30 days of the notice of revocation dated October 2, 1997.
On June 12, 1998, Driver filed a petition for review in St. Louis County. In that petition, He alleged that he had previously filed a petition for review in St. Louis City (the incorrect venue) on October 17, 1997. He sought to "refile" his petition for review with St. Louis County pursuant to the Missouri savings statute, section 516.230, RSMo 1994. On September 25, 1998, an assistant prosecuting attorney for St. Louis County confessed judgment in the cause and agreed the court could reinstate Driver's driving privileges.
On October 26, 1998, Director filed a motion to set aside the September 25th judgment because the court never had subject matter jurisdiction. In that motion, Director alleged the circuit court lacked subject matter jurisdiction, because Driver had not filed his petition for review with St. Louis County within 30 days of the notice of revocation. On November 16, 1998, the circuit court found it did not have subject matter jurisdiction over Driver's untimely petition for review and granted Director's motion and set aside the judgment. Driver appeals from this judgment.
In Point I, Driver contends the trial court erred in sustaining Director's motion to set aside the judgment because Director's motion was not timely filed within 30 days of the judgment as required by Rule 73.01. We disagree. The motion was timely filed and complied with Rule 44.01. The consent judgment was rendered on September 25, 1998. Thirty days from that date was Sunday, October 25, 1998. The Director had until Monday, October 26, 1998 to file the motion to set aside. See, section 506.060.1, RSMo 1994; section 1.040, RSMo 1994; Rule 44.01. Director's motion filed on October 26, 1998 was, therefore, timely.
Driver also argues that Director's motion to set aside the judgment was not an authorized after-trial motion extending the time a trial court retains jurisdiction. This court has previously considered a motion designated "motion to set aside" as a motion for new trial, which is an authorized after-trial motion. See, Hoey v. Royston, 723 S.W.2d 929, 930 (Mo. App. E.D. 1987). Moreover, Director's motion could have been brought after the 30 days had expired pursuant to Rule 74.06(b)(4), which provides for relief from a void judgment. Judgments entered by a court lacking subject matter jurisdiction are null and void. Evans v. Director of Revenue, 871 S.W.2d 90, 91-92 (Mo. App. E.D. 1994). Point denied.
In his second point, Driver contends the trial court erred in finding his petition for review was untimely because it was timely filed under the Missouri savings statute, section 516.230. Driver concedes his petition was not filed, as required, in St. Louis County within 30 days of the notice of revocation. He relies on the provisions of section 516.230 because he refiled his petition within one year after his voluntary dismissal. In response, Director argues the savings statute does n
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