Curtiss v. Bell
| Decision Date | 25 May 1908 |
| Citation | 111 S.W. 131,131 Mo.App. 245 |
| Parties | GEORGE W. CURTISS, Appellant, v. W. L. BELL, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Andrew F. Evans, Special Judge.
REVERSED.
Judgment reversed.
Metcalf Brady & Sherman for appellant.
(1) The motion does not attempt to show diligence on the part of the defendant in attending to the case, neither does it state any facts from which the court could determine whether or not the defendant had a meritorious defense to the cause of action stated in plaintiff's petition and that the defendant would be benefited by the court sustaining the motion. Campbell v. Gaston, 29 Mo. 345; Biebinger v Taylor, 64 Mo. 63; Carr v. Dawes, 46 Mo.App 359; Byers v. Jacobs, 164 Mo. 141. (2) The judgment was regularly taken and after the term had elapsed the court had no control over the judgment except where fraud was committed in procuring it. Martin v. Lutkewitte, 50 Mo. 58; Murphy v. DeFrance, 101 Mo. 151; State ex rel. v. Renick, 157 Mo. 292; Harbor v. Railroad, 32 Mo. 423; Lovitt v. Russell, 138 Mo. 474; Brewer v. Dinwiddie, 25 Mo. 351; Orvis v. Elliott, 65 Mo.App. 96; R. S. 1899, sec. 672; Cradwell v. Stuart, 92 Mo.App. 596; Hopkins v. Cathran, 17 Kan. 173; Byers v. Jacobs, supra; Halsey v. Meinwrath, 54 Mo.App. 343. (3) The defendant's testimony shows that the default was occasioned by the negligence of the defendant's attorney and that no other cause contributed to it. Welch v. Mastin, 98 Mo.App. 273. This negligence appearing, it was beyond the power of the court to disturb the judgment. Costilo v. Greenburry, 51 Mo. 162; Weiner v. Morris, 7 Mo. 6; Carr v. Dawes, supra; Lovett v. Russell, supra.
Flournoy & Flournoy for respondent.
(1) This court has no jurisdiction of this case because the law does not authorize an appeal from the order upon which this appeal was taken. R. S. 1899, sec. 806; Greeley v. Railroad, 123 Mo. 157; Crossland v. Admire, 118 Mo. 87; Schowerer v. Christophel, 64 Mo.App. 81; Kedder v. Wright, 72 Mo.App. 378; Bried v. Hobard, 187 Mo. 140; State ex rel. v. Burns, 66 Mo. 227. (2) The judgment being irregular upon the face of the record was properly set aside upon motion. Norman v. Hooker, 35 Mo. 366; Neman v. City of St. Joseph, 126 Mo. 89; Daugherty v. College, 53 Mo. 579. (3) Although respondent's attorneys were guilty of negligence the judgment would not have been rendered but for the misinformation given to the court by appellant's attorneys, which under the circumstances amounted to fraud. The hearing of the case at the time was caused by the mistake of the court as to the facts about the answer, and as to whether the respondent had an attorney representing him in the case, and that mistake was caused by the fraud of appellant. The proceedings by motion to set aside the judgment was proper, and the judgment was legally and properly set aside. Fisher v. Fisher, 114 Mo.App. 627.
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 which 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:
Mr. W. S. Flournoy who was the defendant's counsel was sworn as a witness on the hearing of the motion. He stated, that he was attorney for defendant in several cases, but by some oversight this case was not put upon his court docket; that he had the impression that it was returnable to the April term, that it passed entirely out of his mind for awhile; that on Friday, the 5th day of April, he saw his client, who asked him if anything had been done with his case, when he told him no, it had not yet been reached; that his client then told him that he had learned that the case had been called and no one answered and it was passed; that he then looked up the record and found that the case was returnable to the January and not the April term; that on Friday the 5th of April he was engaged in business at Independence and returned in the afternoon to Kansas City and filed an answer in the case; that it was his understanding that each Saturday during term time was given entirely to the disposition of motions and no cases were otherwise heard; that he filed an answer in the case after he returned from Kansas City and gave the matter no more attention as the next day was Saturday and the last day of the January term, and that he did not learn that the case had been set for trial until after the judgment was rendered.
It was shown that at the time the judgment was rendered the court inquired if the defendant had an attorney and that the plaintiff's attorney replied that he had not. The court also asked if there was any answer on file to which plaintiff's attorney replied that there was not. The plaintiff's attorney by way of explanation stated that he had examined the files a day or two previous and found there was none, and that he did not know that one had been filed the day before; and that the reason he had made the statement that defendant had no attorney was that he had understood that there had been some misunderstanding between Mr. Flournoy and def...
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