Boeckmann v. Smith

• Decision Date: 18 September 1945
• Citation: Boeckmann v. Smith, 189 S.W.2d 449, 238 Mo.App. 855 (Mo. App. 1945)
• Parties: Jennie Boeckmann, Respondent, v. Bessie Smith, Thomas Quinn, Sheriff of the City of St. Louis, John T. Murphy and Arthur Kreisman, Appellants
• Court: Missouri Court of Appeals

189 S.W.2d 449

238 Mo.App. 855

Jennie Boeckmann, Respondent, v. Bessie Smith, Thomas Quinn, Sheriff of the City of St. Louis, John T. Murphy and Arthur Kreisman, Appellants

Court of Appeals of Missouri, St. Louis District

September 18, 1945

Appeal from the Circuit Court of the City of St. Louis; Hon. Edward M. Ruddy, Judge.

Affirmed.

Arthur Kreisman and John T. Murphy for appellant.

(1) A judgment may be set aside only where the facts of the case disclose that by reason of accident, mistake, mischance or unavoidable circumstances, unmixed with negligence or inattention, a litigant has been deprived of opportunity to present a meritorious defense to a cause.Cherry v Wertheim,25 S.W.2d 118;Engler v. Knoblaugh,131 Mo.App. 481, 492, 110 S.W. 16, 20;Jackson v Chestnut,151 Mo.App. 275;Millikin v Anderson,269 S.W. 675.(2) There is no distinction between negligence of the party and that of his attorney.Millikin v. Anderson, supra;Hoffman v. Loudon,96 Mo.App. 184, 70 S.W. 162;Wuelker v. Maxwell,70 S.W.2d 1100.(3)Trial courts have discretion to set aside judgments only when application therefor is made at the term during which the judgment was rendered.State ex rel. v. Shain, 129 S.W.2d 1048.

Joseph Boxerman for respondent.

(1) Where the facts of the case disclose that by reason of accident, mistake, inadvertence, mischance or unavoidable circumstances, unmixed with negligence or inattention, a party litigant has been deprived of an opportunity to present a meritorious defense to a cause, a court of equity will, after the term, vacate a default judgment, and give such injured party an opportunity to present his defense to a jury.Overton v. Overton,327 Mo. 530, 37 S.W.2d 565;Cherry v. Wertheim,25 S.W.2d 118, 121;Jackson v. Chestnut,151 Mo.App. 275, 131 S.W. 747;City of Dearborn v. Gann & Atkinson,126 Mo.App. 638;McElvain v. Maloney(Mo. App.),186 S.W. 745, 749.(a) Where an attorney abandons a case, without notice to the defendant who had a good defense on the merits and was not guilty of negligence, a default judgment rendered against him, without giving him an opportunity to employ other counsel, should be set aside.Lewis v. Van Hooser,206 Mo.App. 618, 227 S.W. 618;Hall v. McConey,152 Mo.App. 1, par. 7, 132 S.W. 618, 620;Evans v. Terrell(Tex. Civ. App.),95 S.W. 684.(b) Equitable jurisdiction will also be exercised to prevent the enforcement of an unconscionable judgment.31 Am. Jur., "Judgments,"p. 218, sec. 635.(2)Plaintiff showed that she has "a meritorious defense" when she introduced the record of the original suit which recited a judgment in her favor in the justice court.The general rule is that where a court of competent jurisdiction has rendered a judgment in relation to any subject-matter within its jurisdiction, a presumption arises that there was sufficient evidence to authorize the judgment.And where, as here, it is not rebutted, the presumption becomes evidence and is to be evaluated upon that basis.20 Am. Jur., "Evidence,"p. 174, sec. 169;15 R. C. L., "Judgment,"p. 878, sec. 356;20 Am. Jur., "Evidence,"p. 170, sec. 166, and note 1 on p. 171;Davis v. Albritton,127 Ga. 517, 8 L. R. A. (N. S.) 820.(3) The doctrine of laches cannot be invoked to defeat justice.Mere delay or lapse of time, however short of the statutory period, is not of itself sufficient to constitute laches.It must further appear that the other party has been prejudiced by such delay.Earley v. Automobile Ins. Co.(Mo. App.),144 S.W.2d 860, par. 5;Deicke v. Roudebush,138 S.W.2d 678, 683;St. Louis Fire & Marine Ins. Co. v. Wagoner,119 S.W.2d 1007, par. 4;Miller v. Farmers Exchange Bank,107 S.W.2d 852, par. 4;Carlin v. Bacon,322 Mo. 435, par. 7;Hagan v. Lantry,338 Mo. 161, 175.(4) Equity will restrain use of advantage gained in a court of law through fraud, accident or mistake, where injustice will result.Krashin v. Grizzard,326 Mo. 606, 31 S.W.2d 984;Crown Drug Co. v. Raymond,51 S.W.2d 215;Smoot v. Judd,161 Mo. 673, 61 S.W. 854;McElvain v. Maloney, 186 S.W. 745.

Anderson, J. Hughes, P. J., and McCullen, J., concur.

OPINION

ANDERSON

This is a suit in equity brought by Jennie Boeckmann to set aside a default judgment entered against her in an action at law brought by appellantBessie Smith, and to obtain an injunction to restrain the sale of certain real estate under an execution issued on said judgment.The partiesdefendant in this case are: Bessie Smith, plaintiff in the law action; her attorneys in that action, John T. Murphy and Arthur Kreisman; and Thomas Quinn, Sheriff of the City of St. Louis.From a judgment granting the relief prayed in the equity suit, said defendants appealed to this court.

The law action, in which Bessie Smith obtained the judgment, originally was filed in a justice of the peace court, where respondent, Jennie Boeckmann, was represented by Harry Jones, a lawyer then practicing at the Bar in the city of St. Louis.The judgment was rendered in respondent's favor on May 24, 1935, and Bessie Smith took an appeal to the circuit court.Thereafter, Bessie Smith's counsel served Harry Jones with a notice of appeal, as required by the statute, but Harry Jones failed to notify respondent of that fact, and failed to inform her that an appeal had been taken.A few days after receiving the notice of appeal, Harry Jones quit the practice of law in the city of St. Louis, and took up residence elsewhere.He at no time informed respondent of that fact, or of the fact that an appeal in her case had been taken, and respondent's first knowledge that the appeal had been taken was on June 4, 1940, when she received a letter from the lawyer representing Bessie Smith, advising her that a judgment had been rendered against her in the circuit court for the amount prayed for in said cause.The judgment was entered on April 4, 1940, at the April Term, 1940, which said term had expired when respondent received the above-mentioned letter.After receiving the letter, respondent went to look for Mr. Jones, and for the first time discovered that he no longer was in the practice and that he had left the city.She then employed Mr. Kaveney to represent her.On August 27, 1940, Mr. Kaveney filed a motion in the case to set aside the judgment, which motion was denied.Thereafter an execution was issued on said judgment, and real estate belonging to respondent was levied upon and advertised for sale on May 13, 1941.Respondent then instituted this action.The trial court entered its decree setting aside said judgment, and making permanent a temporary injunction theretofore issued enjoining defendants from advertising for sale and from selling the real estate levied upon.In due course defendants appealed.

The first point which appellants make is that there are not sufficient facts alleged in the petition or shown in evidence to invoke the aid of a court of equity.To this we cannot agree.It is well settled that where a defendant in an action at law has a good defense on the merits, which he, through no negligence on his part, is prevented by accident from setting up, and judgment is rendered against him, that equity will grant relief by enjoining further proceedings to enforce a judgment, or by setting it aside so that a trial may be had on the merits.[Cherry v. Wertheim(Mo. App.),25 S.W.2d 118;Jackson v. Chestnut,151 Mo.App. 275, 131 S.W. 747;3 Pomeroy's Equity Jurisprudence(5 Ed.), sec. 836.]

In the latter work the author states the rule in the following language:

"Sec 836, 4.Judgments at law -- Accident is also one of the grounds for the exercise of the most important jurisdiction with respect to actions and judgments at law.Where the defendant in an action at law has a good defense on the merits, which he is prevented by accident from setting up or making available without any...