Davis v. Carp
| Decision Date | 06 December 1909 |
| Parties | MANTON DAVIS, Respondent, v. SAMUEL CARP, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Lawrence Circuit Court.--Hon. F. C. Johnston, Judge.
REVERSED AND REMANDED.
STATEMENT.--Action on judgment begun in Christian Circuit Court, February 12 1908, returnable to the August term, 1908, of said court. The judgment sued on was rendered in the City of Saint Louis January 27, 1898. On the first day of the August term, 1908 Christian county, the plaintiff filed an amended petition in which it was alleged that for the last two years, defendant had been a non-resident of the State. On the same day the defendant, by order of the court, was granted leave to answer on the third day of the term. On the fourth day of the term plaintiff filed an application for a change of venue, alleging prejudice of the trial judge, and the record shows that when this application was taken up both plaintiff and defendant consented that the case should be sent to Lawrence county. The order was then made changing the venue to Lawrence county; transcript was made and sent to the clerk of the Lawrence Circuit Court. The cause was docketed for trial in that court on the first day of the July term, 1908, which was July 5. On that day, defendant, by leave of the court, filed an answer which was a general denial. The plaintiff then filed a motion to strike out this answer and for judgment on the pleadings, alleging as grounds therefor, that the defendant was in default by reason of the fact that he filed no answer in the Christian Circuit Court after having obtained leave to do so, and that time having expired he should not now be permitted to answer. Defendant then offered to file an amended answer in which he specially pleaded the Statute of Limitations and specially denied the allegation of plaintiff's petition that he had for two years been a non-resident of the State. On July the 2nd, depositions had been taken on the part of plaintiff in the city of Saint Louis after proper notice upon defendant. Defendant appeared at the taking of these depositions, and gave notice then to plaintiff that he would also take depositions; plaintiff waived service of notice, and after the plaintiff had closed, defendant, by his counsel, had himself sworn and his testimony was taken. It was also stipulated at the taking of these depositions as follows:
"It is stipulated and agreed that the depositions may be taken down in short-hand, afterwards transcribed and signed by the witnesses; all exceptions as to service of notice, time, etc., are hereby waived, and it is agreed that the depositions may be read in evidence at the trial of the cause, subject only to objections for materiality and relevancy." On the hearing of the motion by plaintiff to strike out defendant's answer and for judgment on the pleadings, the transcript from Christian county, the files in the case and the depositions taken in Saint Louis, were all offered in evidence. The court sustained the motion of plaintiff, struck out the answer of defendant, refused permission to defendant to file the amended answer which he tendered, and rendered judgment for plaintiff. Defendant has appealed.
Reversed and remanded.
H. H. Bloss for appellant.
(1) A court commits reversible error where it strikes out an answer filed out of time, where the default has not been acted upon and where the defendant has a real defense to make and there is nothing to show that the failure was due to improper motives, and especially would the court err where, as in this case, there was no delay occasioned to the plaintiff by such failure or the slightest inconvenience, whatever, and the answer was filed by consent of court. Judah v. Hogan, 67 Mo. 252; State v. Bird, 22 Mo. 470; Pinkston v. Stone, 3 Mo. 119; State ex rel. v. Matlock, 82 Mo. 455. (2) Where a party litigant allows his adversary to proceed with the conduct of a case as though a pleading had been filed without taking advantage of such failure when he should have, he is afterwards estopped from taking advantage of such failure; especially, would that be true where, as in this case, the adversary was put to expense in preparing for the trial and evidence collected to prove all the issuable facts that were afterwards tendered by the answer which was filed by leave of court. Sanders v. Lacks, 142 Mo. 261; Hill v. Meyer Bros. Drug Co., 140 Mo. 439; Hansle v. Cannefax, 49 Mo. 295; Wells v. Electric Co., 108 Mo.App. 617; Winemiller v. Peterson, 65 Mo.App. 599; Nelson v. Wallace, 46 Mo.App. 199.
Pearce & Davis, James A. Potter and I. V. McPherson for respondents.
(1) The court committed no error in refusing to set aside the default judgment. The law in this State is well settled that to justify the court in setting aside a default judgment two things must appear clearly: first, that there was a good excuse for failing to file the answer within the proper time; and, secondly, that the party has a good defense to the action. Robyn v. The Chronical Pub. Co., 127 Mo. 390; Pry v. Railroad, 73 Mo. 123; Hoffman v. London, 96 Mo.App. 189; Parker v. Britton, 133 Mo.App. 275; Welch v. Mastin, 98 Mo.App. 273; Wilson v. Scott, 50 Mo.App. 329. (2) It is equally well settled by the decision in Missouri, that the negligence, oversight or inadvertence of counsel or of the defendant is no excuse for failing to file an answer within the proper time. State to use v. O'Neill, 4 Mo.App. 221; Gehrke v. Job, 59 Mo. 522; Gilstrap v. Railroad, 50 Mo. 491; Boerstein v. Heinrichs, 24 Mo. 26; Edwards v. Watkins, 17 Mo. 273; Austin v. Nelson, 11 Mo. 192; Bosbyshell v. Summers, 40 Mo. 172; Palmer v. Russell, 34 Mo. 476; Webster v. McMahanet, 13 Mo. 585. (3) An appellate court will not interfere with the action of the trial court in refusing to set aside a judgment by default unless there has been a clear case of abuse of discretion on the part of the trial court. Judah v. Hogan, 67 Mo. 252; Tucker v. Insurance Co., 63 Mo. 588; Griffin v. Veil, 56 Mo. 310; Florez v. Uhrig's Adm., 35 Mo. 517; Jacob v. McLean, 24 Mo. 40; Parker v. Britton, 133 Mo.App. 275. The taking of depositions by respondent before the trial of the case in Lawrence County Circuit Court after appellant's default does not amount to a waiver of such default. Sec. 2877, Revised Statutes, 1899; Lewin v. Dille, 17 Mo. 64; Ex Parte Munford, 57 Mo. 603; Ex Parte McKee, 18 Mo. 599; Ex Parte Krieger, 7 Mo.App. 370; Ex Parte Livingston, 12 Mo.App. 80; The Orr & Lindsey Shoe Co. v. Hance, 44 Mo.App. 464.
Plaintiff has filed in this court a motion to dismiss the appeal for the reason that appellant's abstract fails to comply with the rules of this court. Since the filing of this motion, appellant has filed supplemental abstract. This is permissible. [Ricketts v. Hart, 150 Mo. 64, 51 S.W. 825.] And, as this supplemental abstract cures the defects of the original abstract, the motion to dismiss appeal is overruled.
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