Curtiss v. Bell

• Decision Date: 25 May 1908
• Citation: 131 Mo. App. 245,111 S.W. 131
• Parties: CURTISS v. BELL.
• Court: Missouri Court of Appeals

111 S.W. 131

131 Mo. App. 245

CURTISS v. BELL.

Kansas City Court of Appeals. Missouri.

May 25, 1908.

1. JUDGMENT—VACATING—MOTION—TIME FOR.

A judgment cannot be set aside on motion after the term at which it was rendered.

2. SAME—PETITION FOR REVIEW.

Under Rev. St. 1899, § 777 (Ann. St. 1906, p. 752), providing that where a final judgment shall be entered against a defendant, who shall not have been summoned, or who has not appeared, the same may be set aside if defendant shall, within the time limited, appear, and, by petition for review, show cause for setting aside the judgment, a final judgment cannot be set aside on a petition for review where defendant has been summoned or has appeared.

3. SAME—EQUITABLE RELIEF—MISTAKE.

Where the court was not authorized to render judgment by default because there was an answer, it was an error to render such a judgment, which could only be corrected by motion during the term, or by appeal, and not in equity on the ground of mistake.

4. SAME—FRAUD.

Where plaintiff was entitled to a judgment against defendant because he did not file his answer within the time prescribed by Rev. St. 1899, § 597 (Ann. St. 1906, p. 623), a judgment for plaintiff being such a judgment as the court might and should have rendered, representations of plaintiff's attorney to the court that defendant had no attorney and that no answer had been filed, mistakenly, though innocently, made, did not constitute either actual or constructive fraud.

5. SAME—MERITORIOUS DEFENSE.

Equity cannot give relief against a judgment as obtained by fraud and mistake, where there is no effort made to show a meritorious defense.

6. SAME—NEGLIGENCE.

Where, had it not been for defendant's negligence, no judgment would have been rendered against him, equity cannot grant relief.

7. APPEAL AND ERROR—DECISIONS REVIEWABLE—ACTION SETTING ASIDE JUDGMENT.

An appeal lies from a judgment in a suit in equity setting aside a judgment rendered at a former term of the same court, as it is a final judgment.

Appeal from Circuit Court, Jackson County; A. F. Evans, Special Judge.

Action by George W. Curtiss against W. L. Bell. Judgment for plaintiff, by default, and, from an order setting the same aside, plaintiff appeals. Reversed.

Metcalf, Brady & Sherman, for appellant. Flournoy & Flournoy, for respondent.

BROADDUS, P. J.

This is an appeal from the action of the court setting aside a judgment by default. On the 26th day of December, 1906, the plaintiff instituted the action for a dissolution of the partnership and for an accounting. Summons was duly served upon the defendant returnable to the January term of the circuit court of Jackson county, to be held at Kansas City. The case was regularly docketed, and on the 4th day of April, 1907, at which time a sitting of all court cases was made whether contested or uncontested. At that time plaintiff answered that he was ready for trial, and the court placed the case on the list of trial cases to be tried in its regular order. It was reached in its order Saturday, April the 6th, and, the defendant not appearing, the court heard the evidence introduced by the plaintiff, and entered judgment accordingly in his favor. On April the 12th, during the next regular term of the court, the defendant filed his motion to set aside the judgment, which the court sustained.

The said motion, omitting the caption, is as follows: "Bill of Exceptions. Be it remembered that on Friday, April 11th, 1907, the same being the fifth day of the April term, 1907, the defendant filed his motion to set aside the judgment heretofore rendered, as follows: `In the Circuit Court of Jackson County, Missouri, at Kansas City. April Term, 1907. George W. Curtiss, Plaintiff, v. W. L. Bell, Defendant. Cause No. 30,531. Now comes the defendant, and moves the court to set aside and for naught hold the judgment rendered in this case on the last day of the last term of this court, and, as reasons for setting aside said judgment, defendant states: First. That said judgment is irregular and void, for the reason that it was rendered by default when at the time of its rendition an answer was on file in said cause, and said case was at issue. Second. That said judgment was rendered on the last day of the last term of this court, to wit, on Saturday, April 6, 1907; that on said day the court did not intend to hear and was not hearing and cases other than default cases, and that, by mistake, the court rendered judgment in said case, thinking said case was a default case. Third. That the attorneys representing the plaintiff in this case stated to the court at the time judgment was rendered that no answer had been filed in said cause when an answer was then on file, and that by said statement to the court plaintiff's attorneys thereby misled the court. Fourth. That the plaintiff's attorneys well knew that the attorneys Flournoy & Flournoy, who represented the defendant in said cause, intended to make a defense in said action. That W. S. Flournoy, one of the attorneys for the defendant, was in court on Friday, April 5th, and upon examination of the judge's docket discovered marks on said docket at said cause which indicated to the attorney that said cause had been passed for the term, and said attorney did not believe that any case would be taken up and tried on Saturday, it being contrary to the regular established custom and procedure of the court. Fifth. That the name of the attorney for the defendant appeared on the docket, and that the judge of the court, observing said name, asked plaintiff's attorney if Mr. Flournoy did not as attorney represent the defendant, and plaintiff's attorney informed the court that said Flournoy did not represent the defendant, and that the defendant was not represented by counsel in said cause, when, in truth and in fact, plaintiff's attorney well knew that defendant was represented by counsel, for they had had a conference with plaintiff's attorney about the case, and knew that the attorney intended to defend said cause. Plaintiff further states that execution has been issued on said judgment and is about to be levied by the sheriff under the direction of plaintiff's attorneys. Wherefore plaintiffs ask that said execution be stayed until this motion be determined. Defendant further states that he has meritorious defense in said cause, and is not indebted to the plaintiff in any sum. Flournoy &...