Cannon v. Nikles

• Decision Date: 26 May 1941
• Citation: 151 S.W.2d 472,235 Mo.App. 1094
• Parties: JOHN S. CANNON, RESPONDENT, v. OTHO L. NIKLES, APPELLANT
• Court: Kansas Court of Appeals

151 S.W.2d 472

235 Mo.App. 1094

JOHN S. CANNON, RESPONDENT, v. OTHO L. NIKLES, APPELLANT

Court of Appeals of Missouri, Kansas City

May 26, 1941

Appeal from Jackson Circuit Court.--Hon. Marion D. Waltner, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Fred J Wolfson and Cecil Nelkin for appellant.

(1) Defendant's attorney should have been notified, either by the court or attorney for plaintiff, of the proceedings on April 1, 1940, which resulted in default judgment being rendered by the court against defendant on that day especially in view of the fact the judgment was not entered for eighteen days from the time attorney for defendant was notified the case would be reached for trial. (2) The evidence presented to the court at the hearing on May 10 1940, in support of defendant's motion to set aside the default judgment was sufficient, and the court's refusal to set aside said default judgment was an arbitrary abuse of the court's discretion. Vastine v. Bailey, 46 Mo.App. 413; Muth Realty Co. v. Timmerberg (Mo. App.), 161 S.W. 589; Leis v. Mass. Bond. & Ins. Co. (Mo. App.), 125 S.W.2d 906; Henneke v. Strack (Mo. App.), 101 S.W.2d 743; Tucker et al. v. St. Louis Life Ins. Co., 63 Mo. 588; Karst v. Chicago Fraternal Life Assn. (Mo. App.), 22 S.W.2d 178; Perkins v. Travis (Mo. App.), 194 S.W. 730. (3) The application and affidavit for change of venue being in proper form and filed with the clerk of the court, which made it a part of the record in the case, and reasonable notice of such filing having been given plaintiff's attorney, the court should have sustained same or set it down for hearing, with notice to defendant's attorney. 15 R. C. L., sec. 114, p. 666; 23 C. J., sec. 1918, p. 110; Fears v. Riley (Mo.), 49 S.W. 836; Steamboat Osprey v. Upton Jenkins, 9 Mo. 645; Pelz v. Bollinger, 180 Mo. 252, 79 S.W. 146; Chapman v. Currie, 51 Mo.App. 40; Berkbigler v. Scott County Mlg. Co. (Mo. App.), 275 S.W. 599; City ex rel. v. Deemar (Mo.), 73 S.W. 469; Anspach v. Jensen (Mo. App.), 78 S.W.2d 137; Carpenter v. Alton R. R. Co., not yet reported. (4) The trial court should have set aside the default judgment, since the record fails to show defendant was served with a copy of the account before said judgment was rendered. Sec. 769, R. S. Mo. 1929; Clark v. Evans, 64 Mo. 258; Huff v. Shepard, 58 Mo. 242; Dougherty v. St. Vincent College, 53 Mo. 579; Sinclair Refin. Co. v. Pankey & Minich, 285 S.W. 138. (5) The petition of plaintiff fails to state a cause of action against defendant and is insufficient to support the judgment against defendant. Sec. 802, R. S. Mo. 1929; Nutter v. Houston, 32 Mo.App. 451; Butts v. Phelps, 79 Mo. 302; Rosenberg v. Boyd, 14 Mo.App. 429; Marshall v. Western Envelope Mfg. Co. (Mo. App.), 295 S.W. 491; Jones v. St. Joseph Gazette Co. (Mo. App.), 285 S.W. 771; Ocean Accid. & Guarantee Corp. v. Highway Transport Co. (Mo. App.), 51 S.W.2d 889. (6) The trial court should have excluded evidence of the account offered by plaintiff. Sec. 802, R. S. Mo. 1929; See, also, cases under Points 4 and 5. (7) There was a fatal variance between the pleading and proof and plaintiff's evidence failed to support the pleadings or the issues presented. Haake v. Union Bank & Trust Co. (Mo. App.), 54 S.W.2d 459; Phillips v. Thompson (Mo. App.), 35 S.W.2d 383; Kennedy v. Natl. Accid. & Health Ins. Co. (Mo. App.), 76 S.W.2d 748; Rishel v. Kansas City Public Serv. Co. (Mo.), 129 S.W.2d 851.

J. K. Owens for respondent.

(1) There being no motion for a new trial filed either as to the rendition of the original judgment in the case or as to the judgment overruling defendant's motion to set aside default judgment, there is nothing for this court to pass upon except the record proper. Childs v. K. C., St. J. & C. B. R. R. Co., 117 Mo. 414, 23 S.W. 373; Kelso v. W. A. Ross Construction Co, 85 S.W.2d 527; Ford v. Peiper, 24 S.W.2d 1054; Klotz v. Perteet, 101 Mo. 213; Wolfe v. Ward, 104 Mo. 127; State v. Alred, 115 Mo. 471. (2) It was the duty of defendant's attorney, after the cause was placed upon the trial list, to attend court, to be aware of the setting of the case for trial, and if he had filed an affidavit for a change of venue, to present said change of venue to the court. Fairbult v. Hearst Automatic Switch & Signal Co., 199 S.W. 1033; Munroe v. Dougherty, 190 S.W. 1022; Allen v. Allen, 14 S.W.2d 686; Meyerhardt v. Fredman, 131 S.W.2d 916. (3) The evidence presented to the court at the hearing on May 10, 1940, in support of defendant's motion to set aside the default judgment, was not sufficient and the court's refusal to set aside said default judgment was proper. Bedell v. Garton et al., 86 S.W.2d 1073; Allen v. Fewel, 87 S.W.2d 142; O'Connell v. Dockery, 102 S.W.2d 748; Williams v. Barr, 61 S.W.2d 421. (4) The mere filing of an application for a change of venue does not deprive the court of jurisdiction, but it is necessary that the application be presented to the court and the change of venue ordered before the jurisdiction is transferred. Sinclare Coal Co. v. Tabor-Grigg Coal Co., 272 S.W. 701; State ex rel. Ford v. Hogan, 324 Mo. 1130, 27 S.W.2d 21; Berline v. Thompson, 61 Mo.App. 234; State ex rel. v. Matlock, 82 Mo. 457. (5) The trial court did not err in not setting aside the default judgment, since the petition of plaintiff filed in said cause was sufficient, and if the petition was not sufficient, defendant waived the same by answering. Weber v. Terminal Railway Assn. of St. Louis, 20 S.W.2d 601; Oliver v. Wilkey, 62 S.W.2d 776; Skillman v. Ballew, 27 S.W.2d 1036; Pollard v. Carlisle, 218 S.W. 920. (6) The cause of action stated herein is not a suit upon an account within the meaning of section 802, R. S. 1929, but is an action in quantum meruit. Pollard v. Carlisle, 218 S.W. 920; Sidway v. Mo. Land, etc., Co., 187 Mo. 649; Bennett v. Robinson, 180 Mo.App. 56. (7) The court did not err in admitting evidence as offered by plaintiff. (8) There was no fatal variance between the pleadings and proof, and plaintiff's evidence supported the pleadings. R. S. Mo. 1929, sec. 817; Powell v. Schofield, 15 S.W.2d 876; Bammart v. Kenefick, 261 S.W. 78; Phillips v. Broughton, 193 S.W. 593.

OPINION

SHAIN, P. J.

--This action is before us on review of the action of the trial court in refusing to set aside a default judgment. On the 24th day of October, 1939, the appellant filed a petition in the Independence Division of the Circuit Court of Jackson County, Missouri. Summons was duly issued and served on respondent, returnable to the December, 1939, Term of said court.

Thereafter, respondent duly joined issue by general denial and thereafter, said cause being at issue, it was placed on the trial docket and defendant had knowledge that it was on the trial docket for the week of March 11, 1940, and the cause remained upon the active trial docket from March 11, 1940, until April 1, 1940, when the evidence was heard and default judgment was rendered.

On March 13, 1940, a motion for change of venue was filed in the clerk's office but was not presented to the court at any time between March 13 and April 1, 1940, and after rendition of the judgment on April 1, 1940, there was no motion for new trial filed in said case.

Thereafter, and on the 18th day of April, 1940, defendant filed a motion to set aside the default judgment.

Thereafter, on the 1st day of June, 1940, same being the 71st day of the regular March, 1940, Term of said court, said defendant's motion to set aside default judgment was by the court overruled, to which action of the court defendant at the time excepted, and still excepts. The appellant on June 1, 1940, filed with the clerk of the court an application and affidavit for appeal.

Appellant's application for appeal shows that same was directed to the default judgment of April 1, 1940, and from the judgment overruling motion to set aside default judgment rendered by the trial court on June 1, 1940. The trial court allowed the appeal on same day application and affidavit was filed.

The appeal as to the judgment of April 1, 1940, is shown by the record to be out of time and presents nothing for us to review. However, the appeal from the action of June 1, 1940, is timely. In our review, we treat the attempted appeal from the judgment of April 1, 1940, as surplusage and direct our review to the action of the trial court in overruling motion to set aside judgment.

Respondent raises the question as to absence of motion for new trial and as to failure of objections and exceptions. Such omissions, of course, are fatal as to appeal from judgment of default of April 1, 1940. However, exception to action of court in overruling motion to set aside are duly shown and motion for new trial on appeal from motion to set aside is not necessary. The respondent cites cases in his brief wherein appeal is taken direct from ruling on motion to set aside.

The appellant makes seven argumentative assignments of error, some of which go to matters involved in the original suit and some go to charging the trial court with want of diligence in not acting as a lackey and following the appellants around and keeping him personally informed as to the daily status of the affairs in a busy court.

Suffice it to say, if this case rests alone on the diligence of appellant in looking after his case, the showing in the record is overwhelmingly against him. There is, however, a serious question raised which involves the question, not of jurisdiction but of procedure.

The question of procedure in this case is as to whether or not the trial court was in error in rendering a default judgment when an application for change of venue, in due form, had been filed in the case prior to taking up the case and rendering judgment by...