Crutcher v. Kansas City Viaduct & Terminal Railway Co.

• Decision Date: 13 June 1914
• Citation: 168 S.W. 826,181 Mo.App. 368
• Parties: EDWIN R. CRUTCHER et al., Defendant in Error, v. KANSAS CITY VIADUCT & TERMINAL RAILWAY COMPANY, Plaintiff in Error
• Court: Kansas Court of Appeals

168 S.W. 826

181 Mo.App. 368

EDWIN R. CRUTCHER et al., Defendant in Error, v. KANSAS CITY VIADUCT & TERMINAL RAILWAY COMPANY, Plaintiff in Error

Court of Appeals of Missouri, Kansas City

June 13, 1914

Appeal from Jackson Circuit Court.--Hon. E. E. Porterfield, Judge.

AFFIRMED.

Judgment affirmed.

C Angevine, J. K. Cubbison and Wm. G. Holt for plaintiff in error.

(1) The defendant's motion to vacate the judgment contains grounds of surprise, accident, mistake, error of fact, fraud practiced in the act of procuring the judgment, and total failure of proof. The motion takes the place of the common law writ of error coram nobis. It is in the nature of an independent and direct attack upon the judgment in the court in which it was rendered, and is a proper method of bringing such questions before the court. State v. Riley, 219 Mo. 667, 118 S.W. 647; Cross v. Gould, 131 Mo.App 585, 110 S.W. 672; Estes v. Nell, 163 Mo. 387, 63 S.W. 724.

Yates & Mastin and C. S. McLane for defendants in error.

(1) If Crutcher did not disclose in his testimony that the president of defendant company, with whom the contract in question was made, on behalf of the company, was dead at the time of the trial, it would be no reason for setting the judgment aside for fraud in procuring it. Monumental Bronze Co. v Doty, 92 Mo.App. 10; Howard v. Scott, 225 Mo. 714; Nichols v. Stevens, 123 Mo. 116; Hamilton v. McLean, 139 Mo. 685; Moody v. Peyton, 135 Mo. 489; Fears v. Riley, 148 Mo. 58. (2) A judgment will not be set aside for surprise, accident or mistake when the only reason alleged for setting it aside is the negligent of defendant's attorneys and agents in not being present at the trial. Estes v. Nell, 163 Mo. 387, l. c. 394; Robyn v. Publishing Co., 127 Mo. 391; Halsey v. Meinrath, 54 Mo.App. 344; Welch v. Mastin, 98 Mo.App. 273, l. c. 277; Santa Fe Icing Company v. Kemper, 149 S.W. 1163; Jones v. Rush, 156 Mo. 374; Curtis v. Bell, 131 Mo.App. 252; Kerby v. Chadwell, 10 Mo. 394; Gehrke v. Jod, 59 Mo. 522; Matthis v. Town of Cameron, 62 Mo. 507. (3) The judgment cannot be set aside for failure to prove the allegations of the petition upon this kind of a motion. Bronson v. Schulten, 104 U.S. 416; Cross v. Gould, 131 Mo.App. 598.

OPINION

ELLISON, P. J.

Plaintiff brought an action against defendant for commission alleged to be due on account of procuring for defendant options of purchase of several parcels of real estate. When the case was called for trial defendant, though having filed an answer, did not appear. The court noted the default and proceeded to hear the evidence offered in plaintiffs behalf and then rendered final judgment for plaintiff in the sum of $ 2884. At a succeeding term of court defendant appeared and filed a motion to set aside the judgment, assigning a number of reasons therefor. The court overruled the motion and defendant in due time procured a writ of error from this court.

The principal grounds upon which the motion is based are that defendant, or its attorneys, employed Vincent O'Flaherty to notify the attorneys when the case would be assigned and to what division of the circuit court of Jackson county at Kansas City it would be sent for trial. That said O'Flaherty was "relied upon by all lawyers having business in the court to notify them of the assignment and the time when their cases would be called for trial," and that in this instance O'Flaherty failed to notify them and in consequence, they knew nothing of the judgment being rendered until the close of the term, a long time afterwards.

It seems that O'Flaherty is a person without official connection with the court or clerk, but is a private employee of a number of attorneys who employ him either by the year, or by the case, to notify them of the assignment of cases in which they are interested. When engaged by these attorneys he became their agent and thereby, perhaps, the agent of this defendant, to notify them, and any failure on his part must be taken to be the failure of the defendant itself. [Estes v. Nell, 163 Mo. 387, 63 S.W. 724; Robyn v. Chronicle Pub. Co., 127 Mo. 385, 391, 30 S.W. 130.] In Welch v. Mastin, 98 Mo.App. 273, 277, 71 S.W. 1090, we said, "It thus clearly appears from the motion that the cause of defendant's failure to appear was the neglect of their attorney. Ordinarily the neglect of the attorney (not reaching the point of collusion, or the like, of which there is no pretense in this case) is the neglect of the client himself; and he takes the consequence as though he had been the actor. [Gehrke v. Jod, 59 Mo. 522; Biebinger v. Taylor, 64 Mo. 63; Robyn v. Pub. Co., 127 Mo. 385, 30 S.W. 130; Tower v. Ellsworth, 112 Ga. 460, 37 S.E. 736.]" It was said in Kerby v. Chadwell, 10 Mo. 392, that, "The omission of the attorney spoken to in the cause to plead within the time prescribed by law, cannot place the application to set aside the judgment by default upon more favorable grounds than if the omission had been on the part of the defendant himself. The attorney is the agent of the party employing him, and in the court stands in his stead, and any act of the attorney must from necessity be considered as the act of his client, and obligatory on the client. This principle is so well understood and has been so long acted upon as to render it almost useless to refer to it--a different principle could not be tolerated by the courts without immediately leading to endless confusion and difficulty in the administration of justice."

We therefore find against that branch of the motion.

It is next said that the judgment was obtained in fraud. We find no evidence to sustain such charge. The claim is that Crutcher made the contract with Reinhart who was then president of the defendant company and that Reinhart was dead when the trial was had and that Crutcher, though incompetent by reason of the death, was the principal witness in his own behalf and failed to notify the court of Reinhart's death.

This ground affords no reason for...