Colter v. Luke

• Decision Date: 02 March 1908
• Citation: 108 S.W. 608,129 Mo. App. 702
• Parties: COLTER v. LUKE.
• Court: Missouri Court of Appeals

108 S.W. 608

129 Mo. App. 702

COLTER v. LUKE.

Kansas City Court of Appeals. Missouri.

March 2, 1908.

1. PROCESS — SUBSTITUTED SERVICE — STATUTORY PROVISIONS — LEAVING COPY WITH MEMBER OF FAMILY.

Under Rev. St. 1899, § 570 [Ann. St. 1906, p. 597], providing for service of a summons by leaving a copy of the petition and writ at defendant's usual place of abode with some person of his family, the service is constructive, and to be valid must conform substantially to the requirements of the statute.

2. SAME.

Under Rev. St. 1899, § 570 [Ann. St. 1906, p. 597], providing for service of a summons by leaving a copy of the petition and writ at defendant's usual place of abode with some person of his family, a return showing that a copy of the writ and petition was left with a "member" of defendant's family substantially complies with the statute.

3. SAME — WORDS AND PHRASES — "FAMILY" DEFINED.

The word "family" as used in Rev. St. 1899, § 570 [Ann. St. 1906, p. 597], providing for service of a summons by leaving a copy at defendant's usual place of abode with some person of his family, may be defined as "a collective body of persons who live in one house, under one head or manager, including parents, children, and servants, and, as the case may be, lodgers or boarders," (quoting 3 Words and Phrases Judicially Defined, p. 2673), and where the relation between the person to whom the papers are delivered and the other persons of the household is of a permanent and domestic character, and not merely temporary, he is a person of the family on whom constructive service of process against another member may be made.

4. JUDGMENTS—BY DEFAULT—SETTING ASIDE —GROUNDS.

Where defendant, relying on the agreement and usual practice of his codefendant, with whom he was associated in business, to attend to and defend without special request all suits against them, failed to defend a suit against them wherein he was duly served with summons, although he knew his codefendant was absent from the county and might have no knowledge of the suit, the court properly refused to set aside a default judgment against defendant, though defendant may have had a meritorious defense to the suit.

5. SAME.

A default judgment will not be set aside merely because defendant has a meritorious defense, but it must be further shown that he has not been neglectful of his own interest, and that his failure to appear was due to a cause which would have misled any reasonably prudent and diligent person in his situation.

Appeal from Circuit Court, Jasper County; Hugh Dabbs, Judge.

Action by J. L. Colter against James Luke. Judgment for plaintiff on default, and defendant moves to open the default, and from a refusal to do so, he appeals. Affirmed.

McReynolds & Halliburton, for appellant. H. T. Harrison, for respondent.

JOHNSON, J.

Plaintiff brought suit against Jamot Brown and James Luke to recover damages for personal injuries. He alleged in the petition that while employed by defendants as a shoveler in a lead and zinc mine owned by them he was injured by their negligent failure to perform their duty to employ reasonable care to provide him with a reasonably safe place in which to work. Summons, made returnable to the November, 1906, term of court was duly issued, and was returned by the sheriff as follows: "Executed the within writ in the county of Jasper and state of Missouri on the 3d day of November, 1906, by serving the within named defendant, James Luke, by leaving a copy of this writ together with a certified copy of the original petition at his usual place of abode with a member of his family over the age of fifteen years, and, further, by making diligent search and failing to find said Jamot Brown in my county." No answer was filed nor was any appearance made by Luke. The cause was set for trial December 4, 1906, and on that day plaintiff appeared, dismissed the defendant Brown, introduced evidence in support of his cause against Luke and was given judgment in the sum of $500. Two days later, and at the same term, Luke filed a motion to set the judgment aside and to grant him a new trial. He admitted receiving the service papers left by the sheriff at his house as stated in the return, but offered the following excuse for his failure to defend the action, viz.: He and defendant Brown had been extensively interested in the mining business in Jasper county, but, some two years before, Luke had withdrawn from most of the ventures, including the mine in which plaintiff was working, and had transferred the properties to Brown, who continued to operate them on his own...