Arnold v. Palmer

• Decision Date: 31 October 1856
• Parties: ARNOLD, Defendant in Error, v. PALMER, Plaintiff in Error.
• Court: Missouri Supreme Court

23 Mo. 411

ARNOLD, Defendant in Error,

v.PALMER, Plaintiff in Error.

Supreme Court of Missouri.

October Term, 1856.

1. Where, on account of a failure to reply within the time required by law to an offset pleaded, judgment by default was regularly rendered taking the offset as confessed, and the court, on the motion of plaintiff, set aside this judgment by default, neither the motion to set aside nor the accompanying affidavit showing a meritorious defense to the offset pleaded: held, that the court had in this particular exceeded the limits of a sound discretion.

Error to St. Louis Court of Common Pleas.

The facts sufficiently appear in the opinion of the court.

J. B. King, for plaintiff in error.

T. Polk, for defendant in error.

RYLAND, Judge, delivered the opinion of the court.

This was an action in the St. Louis Court of Common Pleas by John B. Arnold against John B. King and Thea Maria Palmer, on a promissory note executed by said John B. King and Thea Maria Palmer to Horatio Arnold, for the sum of five hundred and sixty-five dollars and twenty-two cents, payable one day after date, and dated April 3d, 1852; which note was assigned on April 29th, 1852, to the plaintiff by said Horatio Arnold. The writ was returnable to the September term of the court in the year 1852; but not being executed, an alias writ was issued returnable to the first Monday in February, 1853. On the return day of the writ, being the first Monday and the 7th day of February, 1853, the defendant Palmer filed her answer, alleging that the said note was obtained from her by fraud, and through false and fraudulent representations; also setting up a set-off against the note. This set-off is thus pleaded, viz: “The said plaintiff owes said defendant for wood sold off said land of hers, occupied by plaintiff during the years 1851-2, the sum of four hundred and seventy dollars. The said plaintiff owes defendant for injuries done to the timber growing on said land, cut by him without her consent and against her express orders the sum of five hundred dollars. The plaintiff owes defendant for the rent of said house and land for 1852, the sum of one hundred dollars, making in the aggregate the sum of one thousand and seventy dollars,” and “asks that judgment be rendered against the plaintiff in her favor for the difference between the note and the set-off pleaded, to-wit, the sum of five hundred and seventy dollars.” This answer containing the set-off being filed the 7th day of February, that being the first day of the term, and the plaintiff having failed to file his replication to the set-off within two days thereafter, as required by law, the defendant moved the court that her set-off be taken as confessed against said plaintiff; this motion was sustained by the court, and it was accordingly ordered that said set-off be taken against the plaintiff as confessed, for the want of such replication. On the 19th, the plaintiff filed his motion by his counsel, to set aside this judgment by default entered as aforesaid on the set-off pleaded in this action, which motion is as follows: “The plaintiff moves the court to set aside the judgment heretofore rendered in this cause, taking the pretended set-off pleaded herein as confessed, for the following reasons: 1. The said answer containing the said pretended set-off was filed on the 14th [7th] day of February, 1853, the first day of the term, and the said judgment taken on the 10th day of said February, when, by the law of the land, said judgment ought not and could not be taken. 2. The said judgment was irregularly, illegally and improperly taken. 3. The plaintiff had no notice of the filing of said plea of set-off. 4. The plaintiff had no legal or sufficient notice of the filing of the said plea of set-off. 5. For the reasons contained in the subjoined affidavit of Trusten Polk.” “Trusten Polk makes oath and says, that he is an attorney and counsellor at law and officer of this court; that during the last term of this court and on or about the ____ day of ____, 1852, he was retained by the plaintiff as his attorney and counsellor in this cause; that he has learned for the first time this morning, the 18th day of February, that the said defendant Palmer has filed in her answer in this cause, a set-off, on which judgment was taken by confession on the 10th day of February, A. D. 1853. Affiant states that previous to the calling of the law docket, as he believes, on the first day of this term, at which said docket was called, he examined said docket carefully, noting, as he believes, every case then set down on said docket, and did not observe any entry on the said docket of said set-off in this case; and he hereby refers the court to the entry of the said cause on the attorneys' law docket. He believes he should not have observed the statement made in the entry of this cause on the law docket as to set-off, if the clerk had not informed him of the action had by the court upon the same.” The record shows that the defendant Palmer filed her answer containing the set-off on the 7th of...