Covart v. Haskins
| Decision Date | 09 June 1888 |
| Parties | WILLIAM COVART v. CLARK HASKINS et al |
| Court | Kansas Supreme Court |
Error from Butler District Court.
THE opinion states the case.
Judgment reversed.
F. L Jones, for plaintiff in error.
Shinn & Yeager, for defendants in error.
OPINION
On July 12, 1886, William Covart, as plaintiff, filed his bill of particulars in a justice's court, claiming of the defendants the amount of $ 228.36. Summons was issued, and the defendants were personally served, and on the 19th day of July all parties appeared in court in person and by their attorneys, when a continuance was had for fifteen days. On the 26th, the defendants filed their set-off by H. A. White their attorney. At the time set for trial, on the 3d of August, defendants' attorney, White, appeared specially and asked for a continuance on account of the absence of defendants, which was refused, when he left the court. The trial proceeded, and judgment for $ 164.66 was rendered for plaintiff. On the 7th of August the defendants made application under § 114, chapter 81, to vacate the judgment, which was continued until the 13th, when it was set aside by the justice; whereupon the plaintiff filed his petition in error in the district court, and obtained a temporary restraining order. Upon the 4th day of October following, the petition in error in the district court was dismissed, and the restraining order dissolved. Plaintiff appeared in justice's court and asked for execution upon the judgment of August 3d, and that the subsequent proceedings be dismissed, which was refused; and the justice upon his own motion, without suggestion of either party, continued the case until the 24th day of October. The plaintiff filed his petition in error and transcript in the district court, and at the trial at the January term, 1887, the judgment of the justice's court was affirmed. From that decision he brings the case here for review.
The first question presented to us for consideration is, whether the justice erred in setting aside the judgment of August 3d. The plaintiff claims that § 114 has no application to this case; that the defendants were not absent within the purview of that statute, for two reasons: first, because they had appeared in justice's court previously and obtained a continuance; second, because upon the day of the trial their attorney of record appeared and asked for a continuance. We shall examine these objections in their order. The statute provides that when a judgment shall have been rendered against a defendant in his absence, the same may be set aside upon certain conditions. It is admitted that all the conditions specified in § 114 were fully complied with by defendants, and the naked question presents itself to us, whether the word "absence" means personal absence of the defendants at the time the trial is had and judgment rendered, or whether it refers to the fact that there has been no appearance at all of the defendants before the court. On the one hand it is claimed that the word "absence" should have its ordinary and usual meaning -- not present, withdrawn from the place -- and that it refers to the time of the trial of the case and the rendering of the judgment. On the other hand, it is contended that it means that the defendant has not appeared in the case; that "absence" is equivalent to "non-appearance." The latter view of the case is taken by the supreme court of Nebraska in construing a statute precisely like § 114. (Strine v. Kaufman, 12 Neb. 423.) We are not satisfied with the reasoning of that case, nor inclined to follow it as a precedent. The court held that the word "absence" in their statute is synonymous with "default," and that if there had been no default there had been really no absence. Thus it has been held in that state if there has been a default, there can be no appeal from a judgment rendered; but if the defendant had made an appearance, trial was subsequently had and judgment rendered in his absence, the defendant could appeal. The court held that the words "in his absence" are not to be taken literally, but that "absence" is used as an equivalent to "non-appearance to the action." We prefer to give the word "absence" its ordinary definition, and treat it as meaning that the defendants were not actually present at the time of the trial and the rendering of the judgment.
The phraseology of the statute concerning appearance and absence has some significance. It is provided in the matter of service if the defendant "fail to appear" judgment shall not be rendered for a larger amount than is indorsed on the summons. (Justices Code, § 11; see also § 163.) In subdivision 2 of § 113, it is provided that a judgment may be rendered dismissing the action, when the plaintiff "fails to appear" at the time specified in the summons, or within an hour...
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Hall v. Whittier
...stage of the action by the party in default, while 'absence' means that the party was not present at a particular time." (Covart v. Haskins, 39 Kan. 571, 18 P. 522.) Presiding J. Sullivan, J., concurs. OPINION AILSHIE, Presiding J. This is an appeal from an order of the district court setti......
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Acheson v. Inglis Bros.
...is not by default. Seiberling v. Schuster, 83 Iowa 747, 49 N.W. 844; Strine v. Kaufman, 12 Neb. 423 (11 N.W. 867); Covart v. Haskins, 39 Kan. 571 (18 P. 522). In state, default is specifically defined by section 3788 of the Code: "If a party fails to file or amend his pleading by the time p......
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Hamilton v. Bernstein
...'absence,' as used in § 114, means a failure of the parties to appear at the trial upon which a judgment is rendered." ( Covart v. Haskins, 39 Kan. 571, 574, 18 P. 522.) It clear that the judgment appealed from cannot be regarded as one rendered upon default. Rule 31 of the supreme court in......