Adams v. Hickman

• Citation: 43 Mo. 168
• Parties: ANDREW ADAMS, Plaintiff in Error, v. JAMES P. HICKMAN, Defendant in Error.
• Decision Date: 31 January 1869
• Court: United States State Supreme Court of Missouri

43 Mo. 168

ANDREW ADAMS, Plaintiff in Error,

v.JAMES P. HICKMAN, Defendant in Error.

Supreme Court of Missouri.

January Term, 1869.

Error to First District Court.

This is a suit of attachment instituted in the Circuit Court of Cooper county, on the 1st day of December, 1866, founded on an account for the sum of $835.48. The ground for the attachment, as set out in the affidavit of plaintiff, is the non-residence of the defendant. An order of publication was made by the clerk in vacation, and published in a newspaper printed in Cooper county, and a writ of attachment was issued, and the real estate of defendant attached by the sheriff of said county; said writ was returnable to the February term, 1867, of said court. At the return term, the attorney of Hickman obtained leave to file an answer ninety days before the next term of said court, that being the August term of said court, 1867. At that term, defendant not answering, plaintiff filed his motion for a judgment by default, which motion, on the 29th day of August, 1867, was sustained, and an interlocutory judgment was rendered against defendant. Defendant, on the 30th day of August, 1867, filed his motion to set aside said interlocutory judgment and for leave to answer, which motion the court overruled, and refused to permit defendant to file his answer, and afterward rendered a final judgment against defendant. The defendant then filed his motion to set aside said final judgment, and for a new trial, which motion was also overruled by the court; to which action of the court the defendant objected, and duly excepted, and appealed from the decision to the District Court, where the judgment of the Circuit Court was reversed, and the plaintiff brings the case here by writ of error.

Adams, for plaintiff in error.

I. The good cause shown to set aside a judgment by default must not only be a meritorious defense, but the exercise of all due diligence both by the party and the attorney. No distinction is made between the negligence of a party and that of his attorney. (Freeman v. Morris, 7 Mo. 6; Green v. Goodloe, 7 Mo. 25; Kirby & Potts v. Chadwell, 10 Mo. 392; Austin v. Nelson, 11 Mo. 192; 29 Mo. 343; Lamb v. Nelson, 34 Mo. 501; Palmer v. Russell, 34 Mo. 476; Bank of Missouri v. Bray, 37 Mo. 196; Bosbyshell v. Summers, 40 Mo. 175; passim, see Lecompt and Wife v. Wash, 4 Mo. 557, where the judgment of the Circuit Court was reversed because a judgment by default was set aside on an insufficient affidavit.) In the case at bar, there was gross negligence both on the part of the attorney and his client. Defendant was fully aware that a suit would be commenced against him before he left for Europe, and had retained his attorneys to defend the suit. The client's presence here was not at all necessary to frame and file the answer. It was not required to be sworn to. The attorney, Draffin, knew that the suit had been instituted long before the February term. The affidavit shows nothing to the contrary. But he had ample time, after the order was made extending the time to plead till ninety days before the next term, to have communicated by letter with his client in England, and obtained the necessary information, if he lacked any, to prepare the answer. There was not only no diligence shown, but the affidavit does not pretend to set out any merits. (Lamb v. Wilson, 34 Mo. 501; 29 Mo. 344-5.) The affidavit must set out the facts constituting the defense, in order that the court may see whether the alleged defense is meritorious.

Draffin & Muir, for defendant in error.

The Circuit Court erred in refusing defendant permission to file his answer, and its judgment was properly reversed. (11 Mo. 438; 38 Mo. 269; 39 Mo. 413.)

CURRIER, Judge, delivered the opinion of the court.

The question involved here is one of practice. An interlocutory judgment by...