Byers v. Jacobs

• Decision Date: 28 June 1901
• Citation: 64 S.W. 156,164 Mo. 141
• Parties: BYERS et al. v. JACOBS et al., Appellants
• Court: Missouri Supreme Court

64 S.W. 156

164 Mo. 141

BYERS et al. v. JACOBS et al., Appellants

Supreme Court of Missouri, Second Division

June 28, 1901

Appeal from Boone Circuit Court. -- Hon. Jno. A. Hockaday, Judge.

Affirmed.

Wm. R Gentry for appellants.

The court erred in sustaining plaintiff's motion to strike out defendants' answer. "The courts, upon good cause shown and for the furtherance of justice, may extend the time prescribed in this article for filing any pleading or motion upon such terms as shall be just." R. S. 1889, sec 2062. The answer filed by defendants stated a meritorious defense, which, if established, would have defeated plaintiffs' case. No negligence has been shown, either on the part of the attorney for defendants or his clients. When the court is convinced of that fact, it can and will interfere with the action of the trial court as has been done repeatedly by this court in such cases. It will do so in the interest of justice. Stout v. C. & T. Lewis, 11 Mo. 438; Judah v. Hogan, 67 Mo. 252; Tucker v. Ins. Co., 63 Mo. 588.

E. W. Hinton and Webster Gordon for respondents.

(1) Since in case of judgment by default there is no trial (Crossland v. Admire, 118 Mo. 87), the defendants should have moved to set aside the default instead of moving for a new trial. And in the absence of a timely motion to set aside the default, there is nothing preserved for review. Matthews v. Cook, 35 Mo. 286. (2) No error was committed in striking out the answer filed long after the time for pleading had expired. (a) The affidavits fail to show when Mr. Gentry was employed to defend the case. He may have been employed after the time for answering had expired. And it is not suggested in his own affidavit that he was unable to file an answer. It was not controverted that Mr. Gentry was in attendance upon the court during the first three days of this term, and the trial court doubtless had some personal knowledge as to his condition. (b) There was no showing of any meritorious defense by affidavit or otherwise. The answer consisted of no more than a general denial because the attempted plea of estoppel wholly failed to set out that the plaintiff had received her part of the proceeds of the partition sale with knowledge of the defendant's fraudulent conduct. In order to have justified the trial court in setting aside the default, both a meritorious defense and a sufficient excuse for not making it in time should have been shown. Howell v. Stewart, 54 Mo. 407; Robyn v. Chronicle, 127 Mo. 390; Pry v. Railroad, 73 Mo. 123; Hallowell v. Paige, 24 Mo. 590; Cooney v. Murdock, 54 Mo. 349; Castlio v. Bishop, 51 Mo. 162.

GANTT, J. Sherwood, P. J., and Burgess, J., concur.

OPINION

GANTT, J.

This is an appeal from a decree in the Boone Circuit Court in a suit in equity to have a sheriff's deed in partition set aside and cancelled on the ground that the purchaser, the defendant, James Jacobs, at the sheriff's sale, represented to others present that he was bidding on the property (certain real estate in Columbia) for the plaintiff, and that by his acts and words deterred others from bidding on the same; that he was her agent and bought the property in for plaintiff, Fannie Byers, but refused to turn it over to her, and afterwards conveyed it to defendant Jane Logan, who had full notice of the fraud. The petition tendered into court the amount paid by defendant Jacobs for the land, together with legal interest, and prayed that the defendants be charged as trustees.

The defendants filed no answer within the three days allowed by statute, but some five days after the time for answering had expired, the defendants without asking or obtaining leave for that purpose filed an answer, in these words:

"Now on this day come the defendants herein, and for their joint and several answer to plaintiff's petition filed, say that they deny each and every allegation and averment in said petition contained.

"And for their other and further answer, defendants say that heretofore, to-wit, on the -- day of March, 1896, the plaintiffs instituted a suit in the circuit court of Boone county, Missouri, for the partition of the real estate described in plaintiff's petition; and on the twentieth day of November, 1896, the circuit court entered a judgment and decree for the partition of the same, and on the fourth day of January, 1897, the said real estate was sold by the sheriff of Boone county, Missouri, at public auction, to the highest bidder for a large sum of money, to-wit, $ 135, to this defendant, James Jacobs; that the proceeds arising from said sale, after deducting all costs thereof, were paid over to these plaintiffs and others who were parties to said suit, under the orders of the circuit court of Boone county, Missouri. That the said plaintiffs have received, used and expended said money. Wherefore, defendants say that the plaintiffs are estopped from recovering in this action; and said estoppel is pleaded in bar of their recovery.

"And now having fully answered, defendants pray that they may go hence with their costs."

The plaintiffs immediately filed a...