Boyer v. Fisk, 43381
| Decision Date | 28 July 1981 |
| Docket Number | No. 43381,43381 |
| Citation | 623 S.W.2d 28 |
| Parties | Roy BOYER, Appellant, v. Carl E. FISK and Betty Fisk, his wife, Respondents. |
| Court | Missouri Court of Appeals |
Earl R. Blackwell, Hillsboro, for appellant.
Richard W. French, Hillsboro, for respondents.
Appeal from the setting aside of a default judgment. We reverse.
On January 3, 1980, Roy Boyer filed suit against Carl and Betty Fisk for conversion of his prefabricated house. He sought $30,000.00 in actual damages and $100,000.00 in punitive damages. On January 12, a deputy sheriff of Jefferson County served the Fisks a standard summons stating:
You are hereby summoned to appear before the above named court and to file your pleading to the petition, (a) copy of which is attached hereto, and serve a copy of your pleading upon (the) attorney for plaintiff (at his address), all within 30 days after service of this summons upon you, exclusive of the day of service. If you fail to do so, judgment by default will be taken against you for the relief demanded in (the) petition (emphasis added).
On February 1, the Fisks went to the circuit court clerk's office and obtained a memorandum form. They filled in the style of the case, the date, and the phrase "(no) cause of action." The form does not show it was filled in by the Fisks. They did not sign it, nor make any other notation thereon. The docket sheet on February 1, 1980, shows only "(n)o cause for action." No copy of this or any other response was sent to plaintiff's attorney.
The Fisks asked a clerk there whether they had satisfied the obligations of the summons. The clerk said they had, and they would be notified of their court date. On the way home they talked to "a couple of lawyers," but retained no counsel.
On February 15, 1980, a default judgment was taken. The trial court awarded plaintiff $12,000.00 in actual damages and $5,000.00 in punitive damages. On March 19, plaintiff's counsel notified the Fisks of the judgment and sought payment.
On April 1, forty-five days after the default had been entered, the Fisks filed their motion to set aside the default judgment in the nature of a writ of error coram nobis. A hearing was held, and the motion was granted on May 22. Boyer appeals the setting aside of the default judgment.
Edson v. Fahy, 330 S.W.2d 854, 858 (Mo.1960). See also, Hub State Bank v. Wyatt, 589 S.W.2d 372, 373 (Mo.App.1979). The facts unknown by the trial court at the time of the entry of the default judgment were the execution by the Fisks of the incomplete "(n)o cause of action" memorandum, and the comment by the clerk to Fisks that they would thereafter receive notice of the trial date. However, the complaining party must be free from fault, neglect or inattention to his case, and must prove he exercised reasonable diligence. Defford v. Zurheide-Hermann, Inc., 536 S.W.2d 804, 810 (Mo.App.1976). Reasonable diligence embraces such watchfulness, caution and foresight as under all the circumstances would be exercised by a careful and prudent man....
To continue reading
Request your trial
-
Bittick v. State
...Co., Inc., 950 S.W.2d 551, 556 (Mo.App. E.D.1997) (noting that a civil litigant had "every right to proceed pro se"); Boyer v. Fisk, 623 S.W.2d 28, 30 (Mo.App. E.D.1981) (noting that it is the civil litigant's right to refrain from retaining counsel and proceed pro se); Parker v. Wallace, 4......
-
Kohn v. City of Miami Beach, 91-2636
...of Div. of Employment Sec., 388 Mass. 1003, 445 N.E.2d 1066 (1983); State v. Pilla, 380 N.W.2d 207 (Minn.Ct.App.1986); Boyer v. Fisk, 623 S.W.2d 28 (Mo.Ct.App.1981); Arcadia State Bank v. Nelson, 222 Neb. 704, 386 N.W.2d 451 (1986); State Bank of Burleigh County Trust Co. v. Patten, 357 N.W......
-
Cain v. Webster, 15585
...those admitted to practice law and [is] entitled to no indulgence [he] wouldn't have received if represented by counsel." Boyer v. Fisk, 623 S.W.2d 28, 30 (Mo.App.1981). Also see Niemann v. Kasch, 740 S.W.2d 706 (Mo.App.1987); Johnson v. St. Mary's Health Center, 738 S.W.2d 534 (Mo.App.1987......
-
Cain v. State Bd. of Podiatry
...represented by counsel." Commerce Bank of Kansas City v. Conrad, 560 S.W.2d 388, 390 (Mo.App.1977). To similar effect see Boyer v. Fisk, 623 S.W.2d 28, 30 (Mo.App.1981); Shelton v. Julian, 610 S.W.2d 129, 130 (Mo.App.1980). In Cain v. Webster, 770 S.W.2d 327 (Mo.App.1989), in which Cain was......