Eidemiller v. Kump
| Decision Date | 31 October 1875 |
| Parties | A. G. EIDEMILLER, Plaintiff in Error, v. F. H. KUMP, et al., Defendants in Error. |
| Court | Missouri Supreme Court |
Error to Jackson County Circuit Court.
Milton Campbell, for Plaintiff in Error.
Tichenor & Warner, for defendants in Error.
This action was brought in the Jackson circuit court to recover from the defendants damages for the breach of a contract, by which it is alleged that they on their part had agreed to receive and pay for a large quantity of ice to be delivered to them by the plaintiff.
The summons was made returnable to the October term of said court for the year 1872, which commenced on the 14th day of said month.
On the 19th day of said month, the defendants appeared in court by attorney and obtained leave of the court to file an answer in the cause on or before the 15th day of November next thereafter.
Afterwards, on the 22d day of November, 1872, the defendants having filed no answer in the cause, judgment was rendered against them for want of an answer, and the plaintiff's damages assessed at the same time at the sum of $1,950, all of which was done in the absence of and without the knowledge of the defendants or their attorneys.
After this, during said term, and on the 25th day of November, 1872, the defendants appeared by their attorney and filed a motion asking the court to correct the previous entry in said cause which gave defendants leave to file answer on the 15th day of November, 1872, on the alleged grounds that the court at the time of making said entry had granted the defendants leave to file their answer on or before the first day of December, and that the clerk by mistake had made the entry so as only to extend the time of the answering to the 15th of November. On the 29th of November, 1872, the defendants also filed their motion to set aside the default and final judgment rendered in said cause, which motion was supported by the affidavit of the attorney of defendants, who had appeared for them and transacted their business pertaining to said cause.
On the 30th day of November, 1872, the plaintiff appeared and filed his several motions asking the court to strike the motions, previously filed by the defendants, from the docket and record in the case, but as these motions do not appear in the record they cannot be further noticed here. The court on said last named day seems to have considered all of these motions together and overruled each of said motions, except the motion filed by the defendants to set aside the judgment rendered in favor of the plaintiff for want of answer and the assessment of damages thereon, which motion was sustained by the court, and leave given to defendants to file their answer to the action on or before the first day of December, 1872; to which ruling of the court the plaintiff excepted.
The defendants filed their answer on the first day of December as ordered.
On the 12th day of December, 1872, the plaintiff filed a motion to strike out said answer of defendants and to reinstate the judgment rendered in his favor on the 22d of November, 1872. This last motion seems to have been continued over until the 4th day of February, 1873, when the same was taken up, considered and overruled; to which action of the court the plaintiff again excepted.
On the 9th day of December, 1873, the cause was called for hearing, and, the plaintiff failing to appear or further prosecute his action, the same was dismissed by the court and final judgment rendered in the cause. The plaintiff afterwards moved the court to set aside the judgment of dismissal and to reinstate his judgment of 22d November, 1872. This motion being overruled, plaintiff again excepted, and has brought the case here by writ of error. It is insisted by the plaintiff, that the court erred in sustaining the motion made by the defendants to set aside the judgment, for want of an answer, and the assessment of damages made thereon in favor of plaintiff, and in permitting the defendant to file an answer to the plaintiff's petition; and this is the only question presented for the consideration of this court.
No general rule can be established which will be applicable to all cases where motions are made to set aside judgments and grant new trials. The questions presented in such motions are so variant that each case must necessarily depend, to a great extent, upon its own particular facts, and is generally addressed to the discretion of the court that hears the same. It may be said that...
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Sprung v. Negwer Materials, Inc.
...the discretion has been arbitrarily exercised. (Meechum vs. Judy, 4 Mo. 361 and 540; Faber vs. Bruner, 13 Mo. 541; 55 Mo. 342; Eidemiller vs. Kump, 61 Mo. 340; Obermeyer vs. Einstein, 62 Mo. 341; Jacob vs. McLean, 24 Mo. 40). State ex rel. Reid v. Griffith, 63 Mo. 545, 551 (1876). "[The tri......
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Kansas City, Clinton & Springfield Railroad Co. v. Story
... ... 150. (b) Nor will this court interfere in cases ... addressed to the discretion of the lower court. Giffin v ... Veil, 56 Mo. 310; Eidemiller v. Kump, 61 Mo ... 340. (6) Appellant in his exceptions filed did not raise the ... point that he was denied a jury, and he cannot raise that ... ...
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McCloskey v. The Pulitzer Publishing Company
... ... court has acted arbitrarily. Faber v. Bruner, 13 Mo ... 541; Griffin v. Veil, 56 Mo. 310; Eidemiller v ... Kump, 61 Mo. 340. (4) The rule that a verdict will not ... be disturbed where the evidence is conflicting, applies only ... to appellate ... ...
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