Dower v. Conrad
| Decision Date | 03 May 1921 |
| Citation | 232 S.W. 174,207 Mo.App. 176 |
| Parties | JOHN P. DOWER, Respondent, v. T. A. CONRAD, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon. Samuel Rosenfeld, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Leahy & Saunders, for appellant.
(1) A final judgment against a defendant who has not appeared to the suit, may be vacated both at common law and under the statute. Sections 1532 and 1535, R. S. 1919; Shuck v Lawton, 249 Mo. 168; Hulbert v. Treadway, 159 Mo. 665; Harkness v. Jarvis, 182 Mo. 231; Currey v. Zinc, Lead & Smelting Co., 157 App. 423; 17 Am & Eng. Encyc. of Law (2 Ed.), l. c. 824, etc. (2) Courts in this State have inherent power to set aside a judgment upon motion filed at any time during the term at which it is entered. Harkness v. Jarvis, 182 Mo. 231; Hall v McConey, 152 Mo.App. 1; Parks v. Coyne, 156 Mo.App. 379; Realty Co. v. Timmerberg, 178 Mo.App 654; Shuck v. Lawton, 249 Mo. 168; Higgins v. Higgins, 243 Mo. 164; Hulbert v. Treadway, 159 Mo. 665; Graff v. Daugherty, 139 Mo.App. 56; Currey v. Trinity Co., 157 Mo.App. 423; State ex rel. Potter v. Riley, 219 Mo. 667. (3) The general rule is that where the application discloses a good defense on the merits, and a reasonable excuse for delay shown and no substanial injury has resulted from such temporary delay, the court should exercise its discretion in favor of the trial on the merits. Hall v. McConey, 152 Mo.App. 1; Perkins v. Tarvis, 194 S.W. 730; Scott v. Smith, 133 Mo. 618; Hoffman v. London, 96 Mo.App. 184; Cross v. Gould, 110 S.W. 672; Frazier v. Bishop, 29 Mo. 447; Piper v. Aldrich, 41 Mo. 421; Martin v. St. Charles Tobacco Co., 53 Mo.App. 655. (4) Refusal of the trial court to set aside a default judgment is an abuse of disrection, unless there is bad faith or lack of diligence that cost the plaintiff something in time, trouble or money, or no meritorious defense is disclosed. Perkins v. Travis, 194 S.W. 730; Judah v. Hogan, 67 Mo. 252; Hulbert v. Treadway, 159 Mo. 665; Sinclair v. Narragansett Lead, Zinc Co., 87 Mo.App. 268.
F. P. Sullivan and John Cashman for respondent.
(1) The judgment must be affirmed. Sections 2093 and 2094, R. S. 1909, now sections 1524 and 1525, R. S. 1919, are as follows: Personal Service Sections. These sections, in their present form, have been a part of our Code of Civil Procedure since 1855, at least. How long before that we have not investigated. The provisions of section 1525 are mandatory, and a failure of defendant to move to set aside the interlocutory judgment by default, taken November 9, 1917, before the final judgment was entered, forever barred his rights to have the judgment set aside. State ex rel. v. Taylor, 200 Mo. App., 341; Mathews v. Cook, 35 Mo. 286; Burnes v. Burnes, 61 Mo.App. 612; Billingham v. Miller et al., 115 Mo.App. 154; Colter v. Luke, 129 Mo. 702.
Daues, J., not sitting.
The action on which judgment in this case was rendered, was filed in the circuit court of the city of St. Louis, on the 14th of September, 1917, and was an action for damages against T. A. Conrad, for personal injuries alleged to have been sustained by plaintiff, by coming in contact with obstructions on a sidewalk in front of premises owned by defendant. Summons was issued and personally served upon defendant on the next day after the petition was filed, and more than fifteen days before the October Term, 1917. Defendant filed no answer, nor did he appear or plead for any purpose. Interlocutory judgment by default was entered. During the February Term, 1918, and on the 19th day of March, final judgment was rendered for plaintiff, after a hearing before a jury, for $ 2,000. Four days later, and during the same term, defendant filed a verified motion to set aside the judgment. Defendant in his motion to set aside the judgment, states that the cause was originally instituted against him and another named Charleville; that Charleville was president of a building and investment company, which corporation was, by virtue of an agreement with defendant, engaged in remodeling the building where the injury to plaintiff is alleged to have occurred; that prior to the institution of this suit he had received a letter from an attorney, threatening to file suit; that he gave this letter to his co-defendant, Charleville, who informed him that he (Charleville) carried insurance protecting them both against damages in actions of this character. The affidavit of Charleville was filed with this motion. The defendant further alleges in his motion that he relied upon Charleville's statements that he would defend the action, and did not know that judgment had been rendered against him until the 20th day of March, 1918. He further states that no obstruction was in front of his building and on the sidewalk at the time plaintiff alleges he sustained the injuries. He also states that about a year and a half prior thereto he had sustained a stroke of paralysis, and since that time has been almost completely incapacitated from transacting business, and that if he had known that said cause was to be tried on the 19th of March, 1918, he would have presented his defense.
This motion seems to have been passed to the April Term, 1918. During the April Term, plaintiff filed a motion to strike defendant's motion from the files. This motion seems to have been passed to the June Term, 1918. On July 1st, and during the June Term, 1918, plaintiff's motion to strike from the files defendant's motion to set aside the judgment, was sustained. Defendant, during the same term of court, and two days thereafter, filed a motion to set aside the order overruling his motion for rehearing. This motion was sustained at the October Term, 1918. Other motions were made, and the court finally sustained a motion to strike from the files defendant's motion to set aside the judgment rendered by default, and overruled a motion for rehearing thereon, and from this action an appeal was duly perfected to this court.
The defendant's contention is that courts of general jurisdiction in this state have power to set aside their judgments upon motion filed any time during the term at which such judgments are rendered, and that in this case the motion and application shows a good defense on the merits, and a reasonable excuse for the delay, and that the trial court abused its discretion in not sustaining such motion.
Plaintiff meets this contention with the suggestion that the court had no right or authority to set aside its final default judgment, where there has been personal service, upon a motion such as this, filed after the date of the...
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