Davis v. Robinson

• Decision Date: 28 May 1907
• Citation: 126 Mo. App. 293,102 S.W. 1048
• Parties: DAVIS v. ROBINSON et al.
• Court: Missouri Court of Appeals

102 S.W. 1048

126 Mo. A. 293

DAVIS v. ROBINSON et al.

St. Louis Court of Appeals. Missouri.

May 28, 1907.

1. JUDGMENT—ON PLEA TO JURISDICTION—DEFAULT.

Where a defendant entered a plea to the jurisdiction of the court over his person, a denial thereof filed by plaintiff tendered an issue of fact to be tried on the trial of the merits, and the judgment entered thereon against the defendant was not a judgment by default.

2. SAME—TIME FOR RENDITION.

Rev. St. 1899, § 597, as amended by Laws 1901, p. 86 [Ann. St. 1906, p. 623], provides that, where the defendant has been served with process or notified 30 days before the first day of the term at which he is required to appear, he shall demur to or answer the petition on or before the first day of the term, unless longer time be granted by the court. Section 826 [Ann. St. 1906, p. 796] provides that, on a change of venue, where the transcript and papers of the cause shall be filed in the court to which the cause is certified 10 days before the next ensuing term of court, the cause shall be triable at that term. Held, that where the defendant was personally served with summons more than 30 days before the first day of the term of court at which the summons was made returnable, and a change of venue being granted, the transcript and papers on the cause were filed in the court to which the cause was certified 10 days before the first day of the term at which it was tried, the judgment rendered therein was not prematurely rendered.

3. SAME—VACATING—ABSENCE OF PARTY.

Where a defendant was unable to attend the trial on account of sickness, but did not cause an application to be filed for a continuance, and there was no evidence that the plaintiff or his attorney or the court knew of his sickness, he cannot at a subsequent term of court have the judgment vacated.

4. SAME—EQUITABLE RELIEF—RIGHT TO RELIEF.

Equitable interposition cannot be invoked in aid of a motion to vacate a judgment; a petition in equity being necessary for that purpose.

Appeal from Circuit Court, Stone County; John T. Moore, Judge.

Action by R. H. Davis against U. G. Robinson and others. From a judgment for plaintiff, defendants appeal. Affirmed.

W. A. Gardner, for appellants. I. V. McPherson and Edw. J. White, for respondent.

BLAND, P. J.

The action was for printing and publishing a libel, and was brought in the circuit court of Lawrence county, where plaintiff and defendant R. Rosenthal resided. Defendant Robinson resided in Greene county, and was the proprietor of the newspaper in which the libel was published. Summons was issued to Rosenthal to the sheriff of Lawrence county, and to Robinson to the sheriff of Greene county, both made returnable to the March term, 1905, of the Lawrence circuit court, and were personally served on both defendants more than 30 days before the first day of said term. Rosenthal appeared at said term and filed his answer, which was a general denial, and also his application for a change of venue. Robinson appeared by his attorney, J. H. Pratt, Esq., and filed a plea to the jurisdiction of the court over his person, alleging, in substance, that Rosenthal had no connection with and was not responsible for the publication of the libel, but that he (Robinson) was the owner of the periodical in which the libel was published, and he alone was responsible for its publication, and that Rosenthal was joined as a codefendant by plaintiff for the fraudulent purpose of obtaining jurisdiction over his person, but filed no answer or other pleading. The application of Rosenthal for a change of venue was granted, and the venue awarded to Stone county. In due course a transcript of the record and the papers not forming a part of the record were transmitted to the clerk of the Stone circuit court, and the cause was docketed for hearing at the regular October term, 1905, of said court. Plaintiff and defendant Rosenthal appeared at said term, but defendant Robinson was not present in person or by attorney. The cause coming on for hearing, plaintiff dismissed his suit as to Rosenthal and the cause was submitted to the court (as the judgment recites) upon the pleadings, and evidence adduced by plaintiff upon and from which the court found "that it is not true, as alleged in the plea of the defendant U. G. Robinson, that the defendant R. Rosenthal was made a party to this suit for the purpose of acquiring jurisdiction over the person of the defendant U. G. Robinson, but that it is true that plaintiff has a joint cause of action against said Rosenthal and said Robinson"; and also found that Rosenthal and Robinson jointly composed and published the article complained of in plaintiff's petition, and were jointly liable on account thereof. The court found the article libelous, that it was false and malicious, and assessed plaintiff's actual damages at $2,000 and punitive damages at $2,000. No motion for new trial or in arrest was filed at this term. At the next regular term (February, 1906) defendant Robinson filed his motion in review and to vacate the judgment. The motion, for the purpose of the discussion, may be divided into three parts or heads: First, it alleges the judgment was by default and that it was prematurely rendered; second, the defendant was unavoidably kept away from the October term on account of personal illness...