Armstrong v. Elrick
| Decision Date | 04 November 1913 |
| Citation | 160 S.W. 1019,177 Mo.App. 640 |
| Parties | C. E. ARMSTRONG, Respondent, v. C. F. ELRICK, et al., Appellants |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Charles Claflin Allen, Judge.
REVERSED AND REMANDED.
Earl M Pirkey for appellant.
(1) A judgment by default, rendered while an attorney is temporarily from the court room on account of sickness should be set aside on application. Stout v. Lewis, 11 Mo. 438; Hall v. McConey, 152 Mo.App. 1; Tucker v. Insurance Company, 63 Mo. 593; Judah v. Hogan, 67 Mo. 252; Currey v. Zinc, Lead & Smelting Co., 157 Mo.App. 423; Parks v. Coyne, 156 Mo.App. 379. (2) The recitals of a recorded judgment are presumptively the true record of what occurred. Monk v Railroad, 166 Mo.App. 702; Reis et al. v. Epperson et al., 143 Mo.App. 90; Jones v. Lime Company, 128 Mo.App. 348.
H. A Loevy for respondent.
(1) There is no appeal from the order overruling motion to vacate judgment and for new trial. The only appeal is from the judgment for $ 106.50. (2) The record shows two adverse rulings: (a) On the merits. (b) On motion to set aside judgment. The affidavit for appeal does not disclose from which adverse ruling the appeal was taken. Where the record is not clear in such case the judgment should be affirmed. R. S. Secs. 2038, 2090 and 2092; Garland v. Smith, 127 Mo. 567; Skidmore v. Davies, 10 Paige 316; Martin v Rutherford, 6 Martin N. S. (La.) 281; Wright v. Williams 112 Texas 35; Graham v. Sterns, 16 Texas 153; Cochrane v. Day, 27 Texas 385; Hammond v. Hays, 45 Texas 846; Beard v. Arbuckle 13 West Va. 741; 2 Cyc. 812-3, 821. (3) Respondent was warranted by law in trying his case when it was called for trial. R. S. 1909, Sec. 1973. (4) A petition for review and not motion to set aside is the only lawful proceeding in a case like this: final judgment on merits. R. S. 1909, Sec. 2104. Car Co. v. Kemper, 166 Mo.App. 613; Billingham v. Com. Co., 155 Mo. App 154. (5) To warrant setting aside a judgment the litigant in default must show both (a) Diligence in attending to his case in court, and (b) A meritorious defense. Appellant has not shown either. (6) A plaintiff who is ready for trial has rights which the court will respect. Colter v. Lake, 129 Mo.App. 706; and the defendant in default must show these so clearly as to make it manifest the refusal to set aside was arbitrary. Dana v. Martin, 156 S.W.; Welch v. Martin, 98 Mo.App. 277. The attorney's attention to business in another court is no excuse. Austin v. Nelson, 11 Mo. 125; Wilson v. Scott, 50 Mo.App. 331; Parker v. Britton, 133 Mo.App. 270. (7) The defense of usury is not a meritorious defense. Carr v. Dawes, 46 Mo.App. 359; Biebinger v. Taylor, 64 Mo. 67.
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 twenty-eighth of February, and on March fourth, 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 (Sec. 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 fulfil 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, 2098, 2099, 2100, 2101, 2102, 2103, 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 2101 requires a petition for review only in certain cases therein enumerated, but all of them contemplate an interlocutory judgment which thereafter is made final as by default. A motion will lie to set aside a default before final judgment even under those statutes, but when the final judgment is entered, then a petition for reviewed is required, as we have heretofore said in Billingham v. Miller & Teasdale Commission Co., 115 Mo.App. 154, 89 S.W. 356. But be this as it may, no such questions is involved here, for the judgment sought to be set aside is not one by default, in the sense of that term, but was given against defendant after his answer was filed, and, indeed, after his appeal from the justice of the peace and notice of appeal duly given. The interlocutory judgment by default and the subsequent final judgment contemplated by the statutes above referred to go in those cases where the defendant shall fail to file his answer or other pleading, as is provided in section 2093, and it is the final judgment entered after such interlocutory judgment of default that is not to be set aside except on petition for review. A judgment by default, in the sense of the statutes, can not be given in any case when an answer has been filed which remains undisposed of, for issue is thus joined. [Halsey v. Meinrath, 54...
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