Breed v. Hobart

• Decision Date: 14 March 1905
• Citation: 187 Mo. 140,86 S.W. 108
• Parties: BREED v. HOBART et al.
• Court: Missouri Supreme Court

86 S.W. 108

187 Mo. 140

BREED v. HOBART et al.

Supreme Court of Missouri, Division No. 2.

March 14, 1905.

APPEAL—ORDER GRANTING NEW TRIAL—SETTING ASIDE DEFAULT.

1. Setting aside a judgment by default is not the granting of a new trial, within the meaning of Rev. St. 1899, §§ 801, 806, authorizing appeals from orders granting new trials.

2. Under Code, § 2130, defining a trial as the judicial examination of issues, etc., a judgment rendered against defendants in their absence— there being no inquiry of damages—was by default, so that an order setting it aside was not an order granting a new trial.

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...