Boggess v. Jordan

• Decision Date: 03 May 1926
• Docket Number: No. 15595.,15595.
• Citation: 283 S.W. 57
• Parties: BOGGESS v. JORDAN.
• Court: Missouri Court of Appeals

283 S.W. 57

BOGGESS v. JORDAN.

No. 15595.

Kansas City Court of Appeals. Missouri.

May 3, 1926.

Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.

"Not to be officially published."

Action by Hale M. Boggess against Nancy L. Jordan. From an order and judgment sustaining defendant's motion to set aside a default judgment, plaintiff appeals. Affirmed.

R. A. Mooneyham, of Carthage, for appellant.

J. M. Johnson and Donald W. Johnson, both of Kansas City, for respondent.

ARNOLD, J.

This is an appeal from an order and judgment of the Independence division of the circuit court of Jackson County, Mo., sustaining a motion to set aside a default judgment filed at a term subsequent to that in which the judgment was rendered.

The petition in the original suit was predicated upon a promissory note dated May 1, 1924, in the sum of $1,425, with interest at the rate of 7 per cent. per annum, to be paid semiannually, and if not so paid the interest to become as principal and bear the same rate of interest; and in order to secure the payment of said note, the maker thereof, defendant Nancy L. Jordan, executed and delivered to payee, R. M. Sloan, her certain deed of trust, in which Ben C. Aylor was named trustee, conveying certain real estate therein described. By the terms of said deed of trust failure to pay the principal of said note or the interest thereon, or any part thereof, when due and payable according to the true tenor, date and effect thereof, the whole amount of said indebtedness became due and payable. Judgment is asked in the sum of $1,601.90 and costs.

The petition was filed February 16, 1925, and defendant was timely served. No answer or other pleading was filed, and on April 10, 1925, a judgment by default was entered for plaintiff in the sum of $1,619.50. The prayer of the petition asked for only $1,601.90, and therefore the judgment is for $17.60 more than the amount prayed in the petition. At the term following the return term, on the 19th day of June, and during the June, 1925, term of the court, the defendant filed motion to set aside and vacate the default judgment theretofore entered in the case. On June 27, 1925, said motion to vacate the judgment was heard and sustained by the court, and the judgment accordingly was set aside. It is from said ruling, order, and judgment that plaintiff now appeals. The motion to set aside the judgment is based upon the following grounds:

"(1) The petition of the plaintiff in this Suit was founded upon an instrument of writing charged to have been executed by your petitioner and not therein alleged to have been lost or destroyed. Neither said instrument or writing nor a copy thereof verified by affidavit of the plaintiff was filed herein with said petition as required by the statutes in such cases made and provided, by reason whereof:

"(a) The pleadings, proceedings, and the record in this suit were and are insufficient to support said default judgment.

"(b) The petition was and is insufficient to support said default judgment.

"(c) Your petitioner was not required to plead to said petition until said instrument of writing or a verified copy thereof was filed, and the judgment by default before the filing of said instrument and before the time your petitioner was required to plead was and is void and of no force or effect..

"(2) The petition of the plaintiff was and is demurrable, in that it does not state facts sufficient to constitute a cause of action against your petitioner and in favor of the plaintiff.

"(3) The default judgment has no support in the record in this suit.

"(4) Said default judgment was and is the result of an excess of jurisdiction exercised by the court, in that it was rendered on pleadings insufficient to support it, and awarded relief to the plaintiff in excess of the prayer of the petition.

"(5) The petition prayed for a judgment for the sum of $1,601.90 and for costs, while the judgment rendered by default was for $1,619.50 and interest thereon at the rate of 7 per cent. per annum and for costs."

There was also a sixth ground embodied in the motion, to wit, conspiracy, fraud, and collusion between plaintiff, the payee of the note and the trustee named in the deed of trust, to cheat, wrong, and defraud the defendant. This point was abandoned at the hearing on the motion to vacate, and therefore is no longer in the case.

There is no dispute as to the facts, and we may therefore concern ourselves solely with the law applicable to the facts herein. In his assignments of error, plaintiff urges three propositions in support of his appeal, as follows: (1) The court erred in sustaining the motion; (2) in admitting testimony offered on behalf of defendant over the objections of plaintiff; (3) in exercising jurisdiction of said motion, filed at a term subsequent to that at which the judgment was entered.

As to the second point above enumerated, with reference to the admission of improper testimony, it is observed that plaintiff fails to point out the testimony against which the charge is directed, and the point is not briefed. Therefore as to this item there is nothing for our consideration.

Plaintiff insists the trial court should not have vacated the judgment, but should have corrected it by ordering remittitur of the amount thereof in excess of the sum prayed in the petition. In the discussion of this question, it is proper to state that the law invests the trial court with a wide discretion in such matters; and this court is not authorized to disturb its findings unless it clearly appears that the action of the court of which complaint is made was a violation of such discretion and the well-established rules of law defining and limiting the exercise of such discretion. The general rule in this respect is declared in 4 C. J. 840, as follows:

"The general rule is that a motion to vacate a default judgment and to permit the party against whom it is entered to plead to the merits is addressed to the discretion of the court, and, unless it appears that the discretion has been abused, the court's ruling on the motion will not be disturbed on appeal. And this is especially...