Commerce Bank of Mexico, N.A. v. Davidson, 46633
| Decision Date | 20 March 1984 |
| Docket Number | No. 46633,46633 |
| Citation | 667 S.W.2d 474 |
| Parties | COMMERCE BANK OF MEXICO, N.A., Respondent, v. Andrew M. DAVIDSON, and Alexandra E. Davidson, Appellants. |
| Court | Missouri Court of Appeals |
Dennis J.C. Owens, Gary McMillan, Kansas City, for appellants.
Louis J. Leonatti, G. Andy Runge, Mexico, for respondent.
Defendants appeal from the trial court's refusal to set aside a default judgment entered against them on plaintiff's action for default on a promissory note. We affirm.
Plaintiff filed its petition on August 17, 1981. Defendants were served with process on August 24, 1981. On October 21, 1981, defendants moved for leave to file their answer out of time. The trial court granted this motion and an answer was filed on October 24, 1981.
On March 5, 1982, this action was first set for trial on April 13, 1982. On April 12, defendants' request for a continuance was granted. A second trial date was set for July 9, 1982. Again, at defendants' request, the trial court granted a continuance.
The third trial setting was for September 22, 1982. Two days before trial, defendants moved for a third continuance and requested leave to file an amended answer and counterclaim. On September 22, 1982, the trial court granted the continuance but denied leave to amend the answer or assert a counterclaim.
For the fourth time this action was set for trial, scheduled to start on October 18, 1982. On October 12, 1982, defendants' attorney filed in the circuit court an unverified motion captioned "Notice of Engaged Counsel." The motion claimed the United States District Court for the Western District of Missouri, on October 5, 1982, had appointed defendants' attorney to be trial counsel in a pending criminal action. The motion stated that due to this appointment defendants' attorney would be occupied at the time the present action was set for trial. The motion concluded by requesting a fourth continuance "to such time as is convenient for this Court and counsel is no longer occupied with duties in another action." The trial court made no express ruling on this motion.
On the day of trial, plaintiff appeared with counsel. Defendants and their attorney had received due notice of the trial setting and no ruling on their "Notice of Engaged Counsel" but failed to appear. Plaintiff produced evidence and the trial court entered judgment in its favor for $15,937.12 as the principal amount of the note, $5,036.13 in interest, and $2,309.57 as attorney fees.
Plaintiff mailed defendants a copy of the judgment entered against them on November 29, 1982. The trial court's docket sheet indicates defendants filed a motion to set aside the default judgment for irregularity on December 13, 1982. For some unexplained reason, this motion was not entered in the circuit court's files. Therefore, the Circuit Clerk could not certify a copy of this motion to this court in the record on appeal. Another motion to set aside, however, was filed in this court on April 21, 1983 and is included, but again not certified by the Circuit Clerk, in the legal file on appeal. In any event, the trial court's record shows plaintiff responded to a motion to set aside the default judgment on December 20, 1983.
On January 12, 1983, this court denied defendants' motion to file a late notice of appeal because the trial court had not ruled upon a motion to set the default judgment aside. See Vonsmith v. Vonsmith, 666 S.W.2d 424 (Mo. banc 1984). Defendants' attorney sent a letter to the trial judge on February 3, 1983, stating his motion for a late notice of appeal had been denied and requesting the judge to rule on the motion to set aside the default judgment. The next day the trial judge wrote back, explaining the reason he never ruled on the motion was because it had never been presented to him. The judge concluded the letter by stating he was entering an order as of that date denying the motion. This order was not made part of the legal file on appeal.
On February 22, 1983, this court granted another of defendants' motions to file a late notice of appeal.
Defendants claim the trial court erred in refusing to set aside the default judgment against them because the trial court's failure to rule on the "Notice of Engaged Counsel" constituted "an irregularity in that the action was not in keeping with a mode of...
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In re
...Procedure 65.03 sets forth the simple but mandatory procedure to properly present a motion for continuance. Commerce Bank of Mexico, 667 S.W.2d 474, 476 (Mo.App. E.D.1984); see alsoRule 65.03. When applying for continuance, Rule 65.03 requires that the motion be made in writing, “accompanie......
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In re D.L.W.
...forth the simple but mandatory procedure to properly present a motion for continuance. Commerce Bank of Mexico,___________, 667 S.W.2d 474, 476 (Mo. App. E.D. 1984); see also Rule 65.03. When applying for continuance, Rule 65.03 requires that the motion be made in writing, "accompanied by t......
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Collins v. Director of Revenue, s. 66788
...the docket and progress of litigation and the granting of a continuance is largely within its discretion. Commerce Bank of Mexico, N.A. v. Davidson, 667 S.W.2d 474, 476 (Mo.App.1984). Here, appellant's attorney had sufficient time prior to trial in which to complete his discovery. And in vi......
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Grissom v. Grissom
...of the court. We will not set aside a denial of the motion unless the denial was arbitrary and capricious. Commerce Bank of Mexico, N.A. v. Davidson, 667 S.W.2d 474, 476 (Mo.App.1984). The children asked for a continuance because one of their two attorneys was unable to appear at the schedu......