Austin v. Nelson

• Decision Date: 31 October 1847
• Citation: 11 Mo. 192
• Parties: AUSTIN v. NELSON.
• Court: Missouri Supreme Court

11 Mo. 192

AUSTIN

v.NELSON.

Supreme Court of Missouri.

October Term, 1847.

APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.

By the affidavits of the defendant, Austin, and his attorney, A. M. Gardner, it appears that some time before the term of court, Austin employed Gardner, an attorney at law, to plead to this case. Gardner sent the defendant for his certificate in bankruptcy, and the defendant could not find it. Gardner had two suits in court on notes, and one of them was a suit in assumpsit on the common counts, and the other was this case by petition in debt. He swears that he confounded the two cases in such a manner that he thought this was a case in which he had six days to plead. This circumstance and the inability of Mr. Austin to find his certificate in bankruptcy, prevented the filing of the plea in time. Gardner had prepared his plea to file on the morning of the 3rd day before court opened, but being detained by a law suit did not get into court before the judgment had been taken. No time was lost, and the motion was made forthwith to set aside the default. Austin swears that he had a good and substantial defense on the merits, having been fully discharged in bankruptcy.

HILL & HART, for Appellant.

1. There does not appear to have been any evidence before the court but the instrument of writing, and upon that instrument of writing the court entered judgment. Now we hold that no final judgment could be rendered in the case without proof of the indorsement of Taylor and Holmes, and therefore that the judgment in this case is illegal and void. 2. That the affidavit of Abraham M. Gardner accompanied with the affidavit of the defendant, Austin, shows that the absence of the attorney for Austin was unavoidable, and without this, no default would have been had in said case, and that the Common Pleas ought to have granted a new trial to the defendant, Austin. In support of this, the defendant refers to the principle laid down in the case of Beazley v. Shapleigh, 1 Price, 201; Sayer v. Finck, 2 Caine, 306. 3. That by the affidavit of Gardner as attorney for Austin, accompanied with the facts stated in Austin's affidavit, the defendant shows a clear case of meritorious defense to the action, and shows that the failure to plead in said case was not the defendant Austin's fault, but altogether unavoidable. See Fourdoinier v. Bradbury, 3 Barn. & Ald. 328; Mavlyn v. Podger, 5 Burr, 2631; 4 Monroe, 4 and 5, 440; DeRoufigny v. Peale, 3 Taunt. 484. 4. That when Gardner suffers a judgment to pass against Austin without a trial, clearly by mistake, and to the prejudice of Austin, who shows merits in his defense which is a complete bar to the plaintiff's right of recovery, the default ought to have been set aside, and the defendant allowed to come in and plead. In support, defendant relies upon the doctrine laid down in Rilev v. Emerson, 5 N. Hamp. R. 531; Wimer v. Young, 1 J. J. Marsh. 52.

HOLMES, for Appellee.

1. A default will not be set aside without merits and diligence, both of the party and his attorney. Field &...