Citizens' Bank v. Martin

• Decision Date: 05 May 1913
• Citation: 156 S.W. 488,171 Mo. App. 194
• Parties: CITIZENS' BANK OF POMONA v. MARTIN et al.
• Court: Missouri Court of Appeals

156 S.W. 488

171 Mo. A. 194

CITIZENS' BANK OF POMONA v. MARTIN et al.

Springfield Court of Appeals. Missouri.

May 5, 1913.

1. JUDGMENT (§§ 143, 145)—DEFAULT—REQUISITES.

A motion to set aside a default judgment is addressed to the sound discretion of the trial court and will not be granted, unless defendant shows a good reason for the default, and that he has a meritorious defense.

2. JUDGMENT (§ 143)—DEFAULT—EXCUSE.

Courts are very lenient in granting a motion to open a default where it is the result of illness.

3. JUDGMENT (§ 145)—DEFAULT—MERITORIOUS DEFENSE.

Where defendants suffered default in a suit on certain notes payable absolutely, an allegation of a parol contemporaneous contract, by which plaintiff contracted to permit the loan to stand until defendants could fatten certain hogs, to purchase which the money was borrowed, and also to advance further money with which to purchase feed for the hogs, which plaintiff failed and refused to do, to defendants' serious damage, was insufficient to show a meritorious defense to authorize vacation of the default.

4. EVIDENCE (§ 444)—PAROL EVIDENCE—NOTES—CONDITIONAL LIABILITY.

Parol evidence is not admissible to show that the maker of a note, which purports to be payable absolutely, only promised to pay on condition.

Appeal from Circuit Court, Howell County; W. N. Evans, Judge.

Action by the Citizens' Bank of Pomona against P. M. Martin and another. From an order denying defendants' motion to vacate a default judgment, they appeal. Affirmed.

J. N. Burroughs, of West Plains, for appellants. M. E. Morrow, of West Plains, for respondent.

FARRINGTON, J.

This action was instituted on July 5, 1912, in the circuit court of Howell county. The petition declared on two promissory notes filed therewith, one dated November 11, 1911, due 60 days after date, for $1,200, with interest at 8 per cent., signed by P. M. Martin, with credits thereon which reduced the principal to $367.46, and the other dated February 1, 1912, due one day after date, for $710.97, with interest at 8 per cent., signed by P. M. Martin and Lulie Martin.

On the 12th day of August, 1912, at the July term of the court, a default judgment was entered, which recites that defendants were legally served with process in said action, and which gives plaintiff $375.50 on the note first described and $731 on the other. That this was proper is not disputed, as defendants had filed no answer. Sections 2093 and 2098, R. S. 1909. Five days thereafter, and on the last day of the term, defendants appeared and filed a motion which was sworn to by P. M. Martin, accompanied by an answer which they offered to file in the case. The verified motion sets up the following reason for their default: "Defendants had employed an attorney, Mr. Livingston, to represent them in said cause, to file answer, and make defense for them; that said attorney, by reason of continued illness during this term of court, has been unable to appear in court and look after their interests; that on account thereof these defendants had made no appearance and had taken no steps to defend such action; that they had no knowledge of said conditions until after a judgment was rendered against them." It is then alleged that they have a meritorious defense, and they ask that the judgment rendered by default be set aside, and that they be permitted to plead and make their defense to the action.

The answer which defendants offered to file admitted the execution of the notes, but set up the fact that the amounts evidenced by said notes were borrowed by defendants of the plaintiff under the following circumstances and conditions:

"The defendants informed plaintiff bank that they desired to borrow said sum of money for the purpose of investing in hogs to hold and feed through the winter and to put on the spring market; that they so informed the plaintiff bank, and that they would want to use said money for the purpose aforesaid until the spring following, and that they would need further sums of money with which to buy corn and feed to carry said stock through the winter and on to the spring market; and that, unless they could get the use of the amount specified in said note until that time, and unless the plaintiff bank would further agree to furnish such further sums of money as defendants might need to feed and carry such stock through to the spring market, as aforesaid, they would not borrow such sums as is evidenced by said notes, or make any investments in such hogs.

"Defendants further allege that the plaintiff bank then and there agreed to loan defendants said sums of money on the terms and conditions aforesaid, and further agreed to furnish defendants such further sums as might be necessary to feed and carry the stock said defendants proposed to buy through to...