Bosbyshell v. Summers

• Decision Date: 31 March 1867
• Parties: WILLIAM BOSBYSHELL, Respondent, v. SUMMERS & HERRON, Appellants.
• Court: Missouri Supreme Court

40 Mo. 172

WILLIAM BOSBYSHELL, Respondent,

v.SUMMERS & HERRON, Appellants.

Supreme Court of Missouri.

March Term, 1867.

Appeal from St. Louis Law Commissioner's Court.

This was an action instituted in March, 1865, against appellants for four hundred dollars, for injuries done to plaintiff's carriage by the careless and negligent driving of a dray by defendants. The answer was a general denial, and alleged that the accident occurred by plaintiff's neglect. Upon the trial defendants not appearing, the plaintiff called and examined several witnesses, and the court rendered judgment for plaintiff for four hundred dollars.

Afterwards defendants filed a motion to set aside the judgment and grant a new trial, for the reasons--1. Because defendants have a full and meritorious defense to the action of plaintiff; 2. Because the clerk, in making up the docket, failed to place the names of defendants' attorneys on the same, and the cause was therefore overlooked by said attorneys; 3. Because said attorneys, some two weeks before the trial, sent defendant Summers to the clerk's office to inquire when said case was set for trial; that said Summers did inquire at the office, and was told it was set for the 15th of August, and so reported to his attorneys; 4. For the reasons set forth in the accompanying affidavits.

Appellants then filed the following affidavits in support of said motion:

L. M. Shreve, sworn, says: “At the commencement of the present term of court, I examined the docket of cases due to the 15th of August, and overlooked the case of Bosbyshell v. Summers & Herron as my name was not marked on the docket to this case. I did not observe the name of Mr. Sanders marked, and, though examining with reference to this and the causes, failed to notice it. Affiant states he believes defendants have a good defense to this action and has so advised them, and therefore prays the court to set said default aside that they may make the same.

Daniel Summers on his oath says, that some two weeks ago he called at the office of Shreve & Sanders, his attorneys in the above case, and was sent by them to the office of the Law Commissioner's Court to inquire when the said case would be called up for trial; that he went to the said clerk's office and inquired of a person who seemed to be the clerk, and was informed by him that the case of Bosbyshell v. Summers & Herron would be tried on the 15th of August, and that relying on said information he so reported to his said attorneys, and that this is the reason he was not present at the trial. He further states that he has a complete and meritorious defense to the action of plaintiff, which he will make if a new trial be granted.

The following affidavits were filed against the motion:

William C. Huffman, clerk of the said court, on his oath saith, that no person ever made inquiry of him as to the setting of the above entitled cause; that he did not give any incorrect information to said Summers as to the trial day of said cause, and did not tell him that the same was set for the 15th of August; that the docket of the present term has been set since the 24th day of July, 1865, giving the names of parties and attorneys and date of trial, and accessible to attorneys and parties; that if any inquiry had been made of him, he would only have answered the inquiry by first looking at the docket or index, and could not and did not inform any person that said cause was set for...