Anspach v. Jansen
| Decision Date | 03 December 1934 |
| Parties | DORA ANSPACH, RESPONDENT, v. JOHN P. JANSEN, APPELLANT |
| Court | Kansas Court of Appeals |
Appeal from Circuit Court of Macon County.--Hon. Vernon L. Drain Judge.
REVERSED AND REMANDED (with directions).
Reversed and remanded.
C. G Buster for respondent.
Waldo Edwards for appellant.
Plaintiff, seeking to recover damages for an alleged assault, brought this suit to the April term, 1933, in Macon, but the suit was not brought in time for trial at that term. The defendant filed motion for security for costs on May 13 and answer on September 16. Otho F. Matthews, a member of the Macon bar, whom defendant employed as his attorney, died November 23. The defendant did not thereafter engage another lawyer to represent him although he talked with a lawyer concerning the matter. The cause was listed on the docket of December 11, the first day of the December term, and there were "about twenty cases ahead" of it. On the forenoon of December 11 the plaintiff appeared, waived a jury, introduced evidence, and the court in the absence of the defendant rendered a judgment in plaintiff's favor in the sum of $ 2500. Three days later the defendant filed verified motion to set aside the judgment, alleging therein that although he had a meritorious defense he was not present to defend the action because he was sick and confined to his room; that the motion for security for costs was undisposed of and the defendant believed, and had been so advised by his attorney, that the case would not stand for trial until the motion was ruled upon. The motion was heard, denied, and the defendant has appealed.
In the hearing of the motion it was incumbent on the defendant to show merit and that he was not negligent. In the beginning of the trial the defendant sought to introduce evidence tending to show that he had a meritorious defense. The plaintiff objected to the offer and the objection was sustained. However, later in the trial defendant introduced evidence showing that he had a good and meritorious defense to the action. And the trial judge stated that for the purpose of the motion he was "taking it for granted" that the defendant had a meritorious defense.
The defendant, sixty-three years old, testified that in the previous winter he "had a serious case of flu; . . ." that he was in Macon on Wednesday immediately preceding December 11; that he was not able to return to Macon on any of the three remaining days of that week; that the weather was damp and foggy and that he was "easily affected by that kind of weather;" that on Sunday he went to the home of a neighbor one or two miles distant in a closed automobile driven by his wife; that on December 11 and 12 he was sick and unable to leave his home; that he did not request his wife to have a lawyer represent him; that on December 12 he read in a newspaper that a judgment had been rendered against him and that on the next day he went to Macon and employed attorneys to file the motion under consideration. The defendant further testified that he saw in a newspaper a list of the cases pending in Macon and that all cases civil and criminal were shown to be on the docket of December 11. The defendant's wife testified in substance to the facts as detailed by the defendant, stating that the defendant was not able "to go out at all on Monday;" that he did not leave the house on that day; that on Tuesday he was around at home and that on Wednesday he felt better; that a neighbor, Mr. McNeely, called on December 11 and said to her that the defendant was wanted on the telephone and that she replied that her husband was sick and not able to be out; that Mr. Wise also came to her home, told her that the prosecuting attorney wanted the defendant "at the office;" that she thought he meant the telephone office and that she replied that the defendant was sick and that he could not go to the office; that the messages so received by her were communicated to the defendant.
There was evidence on behalf of the plaintiff that defendant was not confined to his home the entire day of December 9 nor the entire day of December 12. There was other evidence relating to the question of the efforts made by the defendant to employ a lawyer but none of such evidence in any way tends to show whether or not the defendant was sick and confined to his home on the day of judgment.
It has been said many times that an appellate court will not convict a trial court of error in refusing to set aside a judgment such as the one here involved, save upon a showing that such refusal was arbitrary or based upon a misconception of the law. However, if the record in the instant case discloses that the trial court disregarded uncontradicted evidence which, if true, was sufficient to entitle defendant to have his motion sustained then the trial judge did not exercise sound judicial discretion or he misconceived the law.
In legal effect the facts in the present case are strikingly similar to the facts in the case of Armstrong v....
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Crabtree v. Aetna Life Ins. Co.
...sec. 120. (a) The evidence introduced by appellant being uncontradicted, this court should accept the same as true. Anspach v. Jansen, 229 Mo. App. 321, 78 S.W. (2d) 137; Armstrong v. Elrick, 177 Mo. App. 840, 160 S.W. 1019; Clowser v. Noland, 72 Mo. App. 217; 42 C.J. 509, sec. 138; Cal. Ti......
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Crabtree v. Aetna Life Ins. Co.
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...that it is improper to enter a default judgment at a time when one or more motions remain undisposed of. Thus in Anspach v. Jansen, 229 Mo.App. 321, 78 S.W.2d 137 (1935), the defendant's lawyer filed an answer and a motion for security of costs, but then died. The case was listed for trial ......