Armstrong v. Elrick

• Decision Date: 04 November 1913
• Citation: 177 Mo. App. 640,160 S.W. 1019
• Parties: ARMSTRONG v. ELRICK et al.
• Court: Missouri Court of Appeals

160 S.W. 1019

177 Mo. A. 640

ARMSTRONG v. ELRICK et al.

St. Louis Court of Appeals. Missouri.

November 4, 1913.

Rehearing Denied December 6, 1913.

1. APPEAL AND ERROR (§ 367) — AFFIDAVIT FOR APPEAL — QUESTIONS REVIEWABLE.

An affidavit, following the language of Rev. St. 1909, § 2040, requiring appellant to file an affidavit that his appeal is not made for delay, but because he believes he is aggrieved "by the judgment or decision of the court," would authorize the review of a denial of a motion to set aside a judgment against defendant, taken in his absence after answer was filed.

2. JUDGMENT (§§ 107, 335) — "DEFAULT JUDGMENT" — VACATING — REMEDY.

Rev. St. 1909, § 2101, provides that where an interlocutory judgment by default, etc., in an action on a written instrument, shall be made, and final judgment entered thereon against a defendant not summoned, or who does not appear, such final judgment may be set aside if defendant appear by petition for review showing good cause, section 2104 provides that no such judgment shall be set aside unless the petition for review state the existence of the facts set forth in section 2101, and that defendant has a good defense, stating it, and section 2093 provides that if defendant fails to file and serve his answer within the prescribed time, an interlocutory judgment shall be given against him by default. Held, that a judgment entered against defendant after his answer was filed and remained undisposed of was not a "default judgment" which could only be reviewed by petition for review, and hence plaintiff could have it set aside on motion during the term.

3. APPEAL AND ERROR (§ 982) — DISCRETION OF TRIAL COURT — VACATING JUDGMENTS.

The trial court has a large discretion, which is judicial and not arbitrary, in ruling on motions to set aside a judgment for plaintiff on defendant's failure to appear after answer, and the appellate court is less likely to interfere with such judgment where the judgment is set aside than where it is not set aside.

4. JUDGMENT (§ 139) — DEFAULT JUDGMENT — VACATING.

The court's discretion in ruling on a motion to set aside a judgment, taken against defendant for failure to appear after answer, should be exercised in favor of granting a trial on the merits, where a reasonable excuse for defendant's failure to appear, as well as a meritorious defense, is shown and injury will not result from granting a trial.

5. JUDGMENT (§ 143) — DEFAULT JUDGMENT — VACATING — DILIGENCE IN APPEARING.

Defendant had arranged to have his counsel call him when the case was ready for trial, and was at work sufficiently near to be present on 15 minutes' notice, and counsel knew that the case then being tried would consume several hours, and that defendant's case was eighth on the docket. It was shown that defendant's counsel would have reached the courtroom by 11 o'clock before the case was disposed of by judgment for plaintiff had not counsel become sick en route, preventing him from arriving earlier, though plaintiff's counsel claimed that defendant's counsel afterwards telephoned him that he had been detained in another courtroom. Held, that failure of defendant's counsel to be present when judgment was rendered for plaintiff was not negligence, so that the judgment for plaintiff should be set aside on motion showing a good defense, etc.

6. JUDGMENT (§ 162) — VACATING — AFFIDAVIT OF MERITS — EFFECT OF DENIAL.

If the defense stated, in a motion to set aside a judgment for plaintiff for defendant's failure to appear at trial, is sufficient and the facts contained in the affidavit tend to establish such defense, the affidavit of merits is sufficient and the judgment should be set aside though contradictory affidavits are made by plaintiff.

Appeal from St. Louis Circuit Court.

Action by C. E. Armstrong against C. F. Elrick and others. From judgment for plaintiff, defendants appeal. Reversed and remanded.

Earl M. Pirkey, of St. Louis, for appellants. H. A. Loevy, of St. Louis, for respondent.

NORTONI, J.

Defendant appeals from a judgment entered against him during his absence. The principal question for consideration relates to the ruling of the court in refusing to set the judgment aside on motion. But other questions are suggested in plaintiff's argument, advanced to preclude a review of the main question here.

It is urged, first, that the ruling of the court on the motion to set aside the judgment is not before us, for it is said the appeal is from the judgment alone. It appears the court entered judgment against defendant, who had answered, during the absence of himself and his counsel, on the 28th of February, and on March 4th, during the same term of the court, the motion to set aside the judgment thus entered was filed. Subsequently the court considered the motion on affidavits, and overruled it, whereupon an exception was saved and the appeal prosecuted here. The affidavit for appeal is in the usual form prescribed by the statute, and because of this plaintiff argues that no complaint is made of the ruling of the court on the motion which denied defendant's right to have the judgment set aside. The statute (section 2040, R. S. 1909) prescribes as a condition prerequisite to the right of appeal that the appellant or his agent shall, during the same term, file in court his affidavit, stating that such appeal is not made for vexation or delay, but because the affiant believes the appellant is aggrieved by the judgment or decision of the court. The affidavit for appeal employed here conforms precisely to the statute, and is obviously sufficient to bring up the question for a review, for it no more complains of the judgment than it does of the "decision of the court." It is insisted by plaintiff that defendant complains of an after judgment order, and therefore the affidavit for appeal should specify that fact. The statute prescribes the essentials of an affidavit for appeal as above indicated, and it is entirely clear that such is sufficient to fulfill the office of the affidavit in removing all of the questions properly saved theretofore in the case to the appellate court for review. The statute requires that the appellant, or some one for him, shall say in his affidavit that the appellant is aggrieved "by the judgment or decision of the court." It appears here that the affidavit so states the fact to be, and it is difficult to perceive how the complaint is made alone against the judgment and not against the "decision of the court" in overruling the motion to set the judgment aside. It is clear that the appeal is from the decision of the court denying defendant's right to have the judgment set aside. We thus understood the matter when, on a former occasion, a mandamus proceeding was considered here concerning the bill of exceptions in the identical case, and so stated the fact to be, as will appear by reference to State ex rel. v. Allen, 168 Mo. App. 463, 151 S. W. 756. However, this is not an appeal from an order of the court overruling a motion to set aside a judgment by default, for no default judgment, in the technical sense of that term, is involved. Here an answer was filed in due time, and the case was at issue. Instead of the judgment being one under the statute as by default, it was given merely on a failure to appear after service and answer.

The case originated before a justice of the peace, where defendant answered and contested the case, but the plaintiff prevailed. From that judgment for plaintiff, defendant perfected his appeal to the circuit court, paid the filing fee, and caused the transcript to be filed in the clerk's office, all in due time. Moreover, it appears that defendant went about prosecuting his appeal thereafter, for he served notice of the appeal in due time on the plaintiff as the statute requires. On the day the cause was set for trial in the circuit court, during the absence of defendant and his counsel, the court proceeded and gave judgment for plaintiff in the cause, which appears to be one in affirmance of the judgment of the justice. However, it is said that plaintiff introduced proof to establish his cause of action, and we will treat the matter as though he did.

It is argued by plaintiff that a mere motion filed during the term to set the judgment aside is not sufficient in the circumstances, for that he should have filed a petition for review. Of this it is to be said that no interlocutory judgment was entered, followed by an assessment of damages and final judgment thereafter, but it appears the whole matter was adjudicated at once. Moreover, defendant's answer was on file and undisposed of. The statute relied upon by plaintiff in support of this argument is without influence in the circumstances stated, for the case is not one where a petition for review is required. Several sections of the statute are to be read together in this connection. Sections 2093, 2094, 2097 to 2104, treat with the matter of interlocutory judgments and the assessments of damages and final judgments by default thereafter. In such cases a petition for review is required, to the end of vacating the judgment. Sections 2101, 2104, and 2093 are to be considered together touching this matter. It is no doubt true that final judgment may be entered in a suit on a note under section 2098 at the time of entering the default, as is said in Reed v. Nicholson, 158 Mo. 624, 629, 59 S. W. 977, but no such case of default appears here. These statutes provide that no such judgment shall be set aside unless the petition for review shall state the existence of the facts set forth in sections 2101, etc. Section...