Carpenter v. Alton R. Co.
| Decision Date | 06 January 1941 |
| Docket Number | No. 19751.,19751. |
| Citation | 148 S.W.2d 68 |
| Parties | CARPENTER v. ALTON R. CO. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Jackson County; Marion D. Waltner, Judge.
"Not to be published in State Reports."
Action by Lola Carpenter against the Alton Railroad Company to recover damages alleged to have been sustained by the plaintiff when her automobile was struck by defendant's train. A default judgment in favor of the plaintiff was rendered, and the defendant appeals.
Judgment reversed, and cause remanded.
Charles M. Miller, of Kansas City, for appellant.
L. T. Dryden, of Independence, for respondent.
SPERRY, Commissioner.
Plaintiff, Lola Carpenter, sued defendant, Alton Railroad Company, for damages alleged to have been suffered by her when her automobile was struck by defendant's train. A default judgment in favor of plaintiff was rendered and defendant appeals. The parties will be referred to as plaintiff and defendant.
The petition was filed July 25, 1938, returnable to the September, 1938, term of court. Damages, in the amount of $1,000, were asked. On October 25, 1938, during the regular September term of court, defendant filed answer. The cause was continued from time to time until it was eventually docketed for trial on November 6, 1939, a day of the regular September, 1939, term.
On November 6, 1939, before the case was called for trial, defendant filed with the clerk of the court an application for change of venue, wherein it was alleged:
"(1) Because the opposite party has an undue influence over the mind of the judge.
"That defendant first became possessed of the information and knowledge of the grounds of this change of venue on Nov. 6, 1939." The instrument was duly signed and sworn to by attorney and agent of defendant under date of November 6th.
The record discloses that the case was "called" on Monday morning, November 6th, and that counsel for defendant was present in court and that no one answered for plaintiff. When defendant was called its counsel announced that application for change of venue had been filed. Some colloquy occurred between counsel for defendant and the trial judge, concerning the application for change of venue, and counsel for defendant at that time handed to the judge an unsworn and unsigned copy of the application. The trial judge announced that counsel for plaintiff was attending the criminal division of the circuit court in Kansas City, and that the case would not be heard until he could be present. Counsel for defendant remained in the court room until about 2 p. m., when the judge announced that all cases requiring a jury that had been set for that day would be set over until the following Wednesday, November 8th, and excused the jury until that day.
A copy of the application for change of venue was delivered in the court room, the morning of November 6th, to the son of plaintiff's counsel and same was received by plaintiff's counsel about noon, November 6th.
On November 7th court was in session and at the request of counsel for plaintiff, two witnesses in this cause were heard, but no further steps were then taken in the case. On November 8th the court called the case for trial, plaintiff's counsel being present and defendant not answering. Plaintiff filed reply. The application for change of venue was not ruled, but a default judgment for plaintiff, in the full amount sued for, was rendered.
Plaintiff contends that defendant's motion to set aside the default judgment was not filed within four days after its rendition. The motion was filed on November 13th. November 12th, the fourth day after rendition of the judgment, fell on Sunday. Consequently, the motion was timely filed. State v. Harris, 121 Mo. 445, loc. cit. 447, 26 S.W. 558.
The record discloses that the court had personal knowledge that an application for change of venue had been filed and was then pending in the case, prior to rendition of judgment. The record further discloses that the application for change of venue was never ruled by the court. It was neither sustained, overruled, or dismissed.
Plaintiff urges that the court was not required to rule on the application because it was never "presented" to the court by defendant. In support of this contention she cites Berlin v. Thompson, 61 Mo. App. 234, loc. cit. 239. That decision is authority for the proposition that when an application is filed in vacation of court, and is never called to the attention of the judge, there has been no presentation to the court. But such are not the facts here. In this case the record discloses that the application was filed with the clerk of the court on a day when the court was actually in session; that a copy of said application was delivered, in open court, to the son of plaintiff's counsel of record, the son being also a lawyer, said delivery being on the very day the cause was set for trial; that the trial judge was informed, in open court, when the case was called for trial, that such an application had been filed; and that the judge was there and then given what purported to be a copy of said application. The court then announced that no action would be taken on...
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