Breed v. Hobart

Decision Date14 March 1905
Citation187 Mo. 140,86 S.W. 108
PartiesBREED v. HOBART et al.
CourtMissouri Supreme Court

Appeal from Circuit Court, Greene County; Jas. T. Neville, Judge.

Action by Susan P. Breed against B. F. Hobart and another. From an order setting aside a default judgment and allowing defendants to plead to the merits, plaintiff appeals. Appeal dismissed.

Heffernan & Heffernan, for appellant. Benj. U. Massey and W. D. Tatlow, for respondents.

BURGESS, J.

This is an action by Susan P. Breed, as a judgment creditor of the Real Estate Investment Company, wherein she seeks to recover of the respondent Hobart and others the amount of her judgment against the Real Estate Investment Company, on the ground that the said Hobart was one of the incorporators of the said company, and subscribed for $10,000 of the stock of the company, and paid only $2,600, leaving $7,400, the balance due on his subscription to the stock of the said company, which the appellant claims is an asset of the corporation which should be applied to the payment of her judgment. The petition alleges that the Real Estate Investment Company was incorporated by the respondent Hobart and nine others, by each subscribing for $10,000 of the stock of the company, and that the same was paid by the incorporators deeding to the company real estate of the value of $26,000, leaving $7,400 that each of the incorporators was indebted to the company on their stock subscription. In February, 1893, the Real Estate Investment Company issued two notes secured by deed of trust, each for $5,000, which they sold through the brokerage firm of Noell & Co., of St. Louis. One note was sold to the appellant, Mrs. Breed. Default was made in the payment of appellant's note, and foreclosure of the deed of trust had by sale of the property to Mrs. Breed, and judgment obtained for the surplus, and execution was issued, nulla bona return made, and this action was brought. On the 26th day of July, 1902, judgment was rendered against the respondents, Hobart and Bigbee, as administrator of the estate of Ambrose, deceased, in favor of the appellant, Breed. This judgment was rendered by default, the respondent Hobart or Bigbee not being present in court at the time the judgment was rendered. Afterwards, and at the same term of court, to wit, the May term, 1902, the respondent Hobart filed a motion in said court to set aside the judgment so rendered against him, on the ground that the default was occasioned by a misunderstanding between his attorneys and the attorney for the appellant, Mrs. Breed, and he had no notice of the fact that the case was set for trial, and that no record entry was made notifying him of that fact, although the case had been passed generally, and although it was the custom and rule of the court, under such circumstances, to make a record entry notifying the parties as to the...

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26 cases
  • Erickson v. Starling
    • United States
    • North Carolina Supreme Court
    • 11 de junho de 1952
    ...25 Cal.2d 202, 153 P.2d 334; Finn v. Spagnoli, 67 Cal. 330, 7 P. 746; Tregambo v. Comanche Mill & Mining Co., 57 Cal. 501; Breed v. Hobart, 187 Mo. 140, 86 S.W. 108; State exrel. Carleton v. District Court of Lewis and Clark County, 33 Mont. 138, 82 P. 789, 8 Ann.Cas. 752; Kromer v. Kear, 8......
  • Bussiere's Adm'R v. Sayman
    • United States
    • Missouri Supreme Court
    • 2 de abril de 1914
    ...it was plain that under the decision in Crossland v. Admire, 118 Mo. 87 , this case was not appealable (followed in the case of Breed v. Hobart, 187 Mo. 140, loc. cit. 143-144 ), but certified it on the ground that an order of dismissal conflicted with the decision of the Kansas City Court ......
  • Gosnell v. Gosnell
    • United States
    • Missouri Court of Appeals
    • 6 de novembro de 1959
    ...not inconsistent with this opinion. McDOWELL and RUARK, JJ., concur. 1 Crossland v. Admire, 118 Mo. 87, 24 S.W. 154; Breed v. Hobart, 187 Mo. 140, 86 S.W. 108; Owens v. Owens, Mo.App., 280 S.W.2d 867, 868. See also State ex rel. Wendling v. Arnold, 197 Mo.App. 1, 7, 193 S.W. 292, 293.2 Cros......
  • Bussiere's v. Sayman
    • United States
    • Missouri Supreme Court
    • 2 de abril de 1914
    ...was raised, nor was the point held under judgment. The ruling in the Crossland-Admire case was followed in the case of Breed v. Hobart, 187 Mo. 140, 86 S.W. 108, latter case was, however, decided correctly without any doubt, since the motion to vacate the default judgment was filed therein ......
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