Daugherty v. Lanning Harris Coal and Grain Co.

• Decision Date: 16 June 1924
• Citation: 265 S.W. 866,218 Mo.App. 187
• Parties: AARON DAUGHERTY, Respondent, v. LANNING HARRIS COAL and GRAIN COMPANY, Appellant.
• Court: Kansas Court of Appeals

265 S.W. 866

218 Mo.App. 187

AARON DAUGHERTY, Respondent, v. LANNING HARRIS COAL and GRAIN COMPANY, Appellant.

Court of Appeals of Missouri, Kansas City

June 16, 1924

Appeal from the Circuit Court of Lafayette County.--Hon. Samuel Davis, Judge.

AFFIRMED.

Judgment affirmed.

Lyons & Ristine for respondent.

Charles M. Bush and Aull & Aull for appellant.

OPINION

TRIMBLE, P. J.

Judgment by default was rendered for $ 5000 against defendant, and three days later at the same term, a motion was filed to set the judgment aside. Later in the same term an amended motion to set aside was filed and after a hearing thereon the court overruled it. From an order overruling this motion the defendant has appealed.

Plaintiff on September 7, 1921, filed suit in the circuit court of Lafayette county, Missouri, for $ 10,000 damages, alleging that while employed in defendant's coal mine as the operator of an electrical coal-cutting machine using a high-tension current of electricity, he was injured through the negligence of defendant in not furnishing a reasonably safe and properly insulated apparatus, whereby a "short circuit" was created and an intensely hot and binding flash was thrown out, injuring plaintiff's eyes and permanently impairing his vision.

Next day, September 8, 1921, summons was issued and served on Schlegel, an agent in charge of defendant's office in Lafayette county, the president or other chief officer not being found in said county. The writ of summons commanded defendant to appear on the first day of the next term, which was Monday, October 10, 1921.

Evidently defendant turned the service papers over to its liability insurance company, for, on Tuesday, October 4, 1921, the Adjuster for the Maryland Casualty Insurance Company at Kansas City delivered the papers to the law office of Mr. Charles M. Bush of that city for attention, he at that time being in New York or Washington on business.

On Saturday, October 8, 1921, in the absence of Mr. Bush, his office mailed a demurrer to the clerk of the Lafayette circuit court, requesting that it be filed in the case. Said demurrer was in the usual stereotyped form saying that the petition did not state facts sufficient to constitute a cause of action.

On Tuesday, October 11, 1921, the second day of the term, the demurrer was filed by the clerk, with permission to do so obtained from the court. The clerk on the same day wrote to Mr. Bush advising him that the demurrer had been filed and that the court had designated Saturday, October 15, 1921, as the day on which motions and demurrers would be heard; and the letter closed with the statement that "this is all the information I can give you in the matter." No mention was made of the fact that the case was on the docket for trial on Tuesday, October 18th, and, as will hereinafter appear, Mr. Bush says he did not know this, never having received any docket or other notice to that effect. The clerk's letter to Mr. Bush was received by him on Wednesday, October 12, 1921, he having returned from Washington on the evening of October 11th, that being the first date he says he knew of the suit having been filed.

On the morning of October 12th, Mr. Bush entered upon the trial of a case in the circuit court of Jackson county, Missouri, and continued therein until the afternoon of Friday, October 14, 1921, when he was notified of the setting of another case in the same court on Monday, October 17th, and, throughout the Saturday and Sunday intervening, he made preparation for the trial thereof, and on Monday morning the 17th he entered upon the trial of that case and continued therein until the afternoon of Wednesday, October 19, 1921.

In the meantime, the circuit court of Lafayette county, on Saturday, October 15th, overruled the demurrer, the order merely reciting that the demurrer "is by the court overruled." No order was made fixing time in which further pleading could be filed.

On the day on which the case was on the docket for trial, Tuesday, October 18, 1921, the plaintiff appeared with witnesses and the court rendered judgment for plaintiff in the sum of $ 5000, the judgment entry first reciting that--"On this day comes the plaintiff by his attorney and it appearing to the court from the record that the defendant has been duly served with process and summons more than thirty days before the commencement of the first day of this term of court, and that defendant in answer to said process and summons duly entered its appearance by filing a general demurrer to the plaintiff's petition, which demurrer was heretofore overruled, and the defendant having failed to plead further or answer the plaintiff's petition within the time required by law and the rules of this court, comes not, whereupon on motion of plaintiff's attorneys the cause is duly taken up and thereupon the plaintiff by his attorneys waives a jury and submits the cause to the court upon the pleadings and proof adduced, and the court after hearing the evidence and being fully advised in the premises doth find the issues for the plaintiff and against the defendant and doth assess the plaintiff's damages at the sum of five thousand ($ 5000) dollars."

The amended motion (which is merely an amplification of the original motion to set aside the default), set up the following grounds:

1. That the demurrer was overruled on Saturday, October 15th, and thereafter, on Tuesday, October 18th, at about 9:30 a. m., judgment by default was rendered "before, in the opinion of counsel for defendant, time had expired for defendant to plead further."

2. That counsel for defendant thought the same time was allowed to plead or answer in the circuit court of Lafayette county as in Jackson county and that three days were allowed by the statute to plead or answer, and did not know that Lafayette was a county of less than 40,000, and was honestly mistaken in thinking the same time was allowed to plead or answer. But had an answer been filed on the same day the demurrer was overruled, "the result would have been the same, because on account of the unavoidable absence of counsel for defendant judgment by default would have been taken." That in Jackson circuit court the time for pleading to a petition is three days from the return day of the summons, and after demurrer is overruled the same time is allowed unless the court allows further time, as shown by Rule 7 of the Jackson circuit court as follows:

"When a petition, answer or reply shall be adjudged insufficient in whole or in part, upon demurrer, or the whole or some part thereof stricken out on motion, the party may file a further or like pleading within three days thereafter, unless the court shall direct the same to be filed within a shorter or longer time.

"If such a demurrer or motion shall be overruled, the party filing the same shall plead to the petition or answer, as the case may be, within three days thereafter, unless the court shall direct or permit such party to plead within a shorter or longer time."

That "defendant's counsel had never had a case before in the circuit court of Lafayette county, Missouri, and was not acquainted with the rules of that court."

3. That defendant's attorney, Chas. M. Bush, was compelled to leave for Washington and New York on important business on October 1st and did not return until October 11th; that he was compelled to enter the trial of Gerber v. Boyle Construction Co. in Division 6 of the Jackson circuit court, on the morning of October 12th and continued therein until the afternoon of Friday, October 14th, when he was notified that the case of Cole v. Norton Bros., in Division 3 was for trial on Monday morning, October 17th, and the time intervening was spent in preparation; that on Monday morning, the 17th, he entered upon that trial and continued therein until Wednesday afternoon, October 19th. That during Mr. Bush's absence from the city, the papers in the case of Daugherty v. Lanning-Harris Coal and Grain Co., were on October 4, 1921, sent by the Adjuster of the Maryland Casualty Company to Mr. Bush's office for attention; that Mr. Bush had no knowledge of the pleadings in that suit until after his return; that a demurrer was mailed on Saturday, October 8th, to the clerk of the Lafayette circuit court which for some reason was not filed by him until October 11th although Lexington was only forty-four miles away; that on the 11th the clerk wrote Mr. Bush the demurrer had been filed, and that the court had designated Saturday, October 15th, to hear motions and demurrers, and concluded his letter by saying, "This is all the information I can give you in the matter."

4. That, on Monday, October 17th, L. D. Lanning, an officer of defendant, informed H. S. Nelson, who had theretofore negotiated with plaintiff's attorney for settlement, that plaintiff had subpoenaed Alex. Schlegel, one of defendant's employees, and asked Nelson what to do, and after discussion concluded that depositions were to be taken at Lexington on Tuesday, October 18th; that neither Lanning nor Nelson knew that the case had been set for trial; that Nelson called Miss Redd, Secretary to Mr. Bush, and informed her that depositions were to be taken at Lexington the following morning; that thereupon Miss Redd called the firm of Lyons & Ristine at Lexington, plaintiff's attorneys and informed Mr. Ristine that Bush was engaged in the trial of a case in the Jackson circuit court at Kansas City, and could not be in Lexington on the day set for the taking of depositions, and asked him if they could not be continued and also asked him if notice had been given for the taking of said depositions, and that Mr. Ristine, in reply to questions concerning the notice, said, "I can't say as to that," and said...