Emerson-Brantingham Implement Company v. Montgomery

• Decision Date: 05 December 1927
• Parties: EMERSON-BRANTINGHAM IMPLEMENT COMPANY, RESPONDENT, v. O. P. MONTGOMERY, APPELLANT. [*]
• Court: Kansas Court of Appeals

300 S.W. 538

222 Mo.App. 12

EMERSON-BRANTINGHAM IMPLEMENT COMPANY, RESPONDENT, v. O. P. MONTGOMERY, APPELLANT. ^[*]

Court of Appeals of Missouri, Kansas City

December 5, 1927

Appeal from the Circuit Court of Vernon County.--Hon. Berry G Thurman, Judge.

Judgment affirmed.

Chas E. Gilbert for respondent.

W. M Bowker for appellant.

FRANK, C. Williams, C., concurs. Trimble, P. J., absent.

OPINION

FRANK, C.

This is a suit by respondent upon a judgment rendered by the district court of Allen county, Kansas, in favor of respondent here and against this appellant.

The petition is in the usual form. The answer pleads, (1) a general denial, and (2) that the suit in which such judgment was rendered had been pending in the district court of Kansas for a number of years and had been continued generally during that time; that he had employed one Baxter McLean as his attorney to defend him in said suit; that his said attorney was absent from the State and did not know that said cause was set for hearing, or would be called for hearing at the time the judgment was rendered; that one A. R. Enfield, without the knowledge of this defendant, assumed to act as his attorney in said cause at the time said judgment was entered, and falsely and fraudulently represented to the court that he represented this defendant, and thereby deceived the court into taking up and entering said judgment in defendant's absence; that defendant had no knowledge that said cause was set for hearing at the time said judgment was entered, and had no notice whatever of the same, and that said attorney A. R. Enfield, was utterly without authority to act for him at the time; that by assuming to act, as aforesaid, he induced the court to take up and pass upon said cause in the absence of said defendant and thereby enter said judgment; that the same constituted a fraud upon the court in the procuring of said judgment.

The answer also states that defendant had a good defense to said alleged cause of action; that he was not indebted to the plaintiff in any sum whatever and that he had a valid and subsisting counterclaim of something over $ 1000 which he expected to assert against plaintiff.

At the trial of the case at bar, a duly authenticated copy of the Kansas judgment was introduced in evidence by plaintiff. This judgment is regular upon its face and its recitals show that the court rendering it was possessed of jurisdiction of the parties and the subject-matter of the action and had full power to hear and determine said cause. It is not claimed by appellant that the judgment is void for lack of jurisdiction of the parties or of the subject-matter of the action or want of authority in the court pronouncing it, to hear and determine said cause.

Appellant's contention is that although the judgment sued on shows on its face that the court rendering it was possessed of jurisdiction of the parties and of the subject-matter of the action, and had power to hear and determine said cause, he nevertheless, is entitled to show that such judgment was procured by fraud.

In support of his contention, he introduced in evidence the deposition of Baxter D. McLean, an attorney whom he had employed to defend him in the suit in which said judgment was rendered.

This witness testified that he was an attorney, duly admitted to practice in the courts of the State of Kansas; that he had maintained an office for general practice of law in Iola, Allen county, Kansas since 1900; that early in 1921 business matters demanded his attention at other places for extended periods of time so that he was not in continuous personal touch with his pending court matters in Allen county, Kansas; that he associated with him in his office one A. R. Enfield, an attorney of Iola, Kansas; that said association was not a partnership, the arrangement being that each party was to practice independently and as a matter of courtesy said Enfield was to keep him advised as to matters he had in court; that said Enfield was not to try or dispose of his cases except when directed by him so to do; that the case in which the judgment in suit was rendered had been pending in the district court of Allen county, Kansas, since May, 1916; that said case stood on defendant's motion to make plaintiff's petition more definite and certain since May, 1920; that said cause was set for trial February 6, 1920, on plaintiff's original petition and defendant's verified answer and counterclaim at which time plaintiff was granted leave to file an amended petition and the case was continued; that on November 3, 1922, judgment was rendered in said cause in favor of plaintiff and against defendant for $ 539.30 and for costs; that said judgment recites that defendant was present by counsel McLean & Enfield and by consent of parties a jury was waived and cause tried to the court; that the journal entry of said judgment was approved by Baxter D. McLean and A. R. Enfield; that he had no knowledge or notice that said cause was set for trial; that same was not at issue and could not be set for trial until after defendant's motion to make plaintiff's amended petition more definite and certain had been disposed of and defendant given time thereafter to plead to such petition; that this situation was evidently not called to the trial court's attention as no mention of the pending and undisposed of motion was made in the journal entry of the judgment; that Mr. Enfield had no right or authority to appear for and consent to a trial of said cause, or consent to the waiver of a jury or the entry of any judgment in said cause; that he had no right or authority to approve a journal entry reciting such facts; that as a matter of fact Mr. Enfield did not presume such authority nor take any action whatever in the trial of such case, but after attempting to have the trial thereof continued, but without avail, simply stood by while a default judgment was taken for the amount above stated; that by mutual mistake of counsel for plaintiff and Mr. Enfield the situation of the pleadings was not called to the attention of the court; that said judgment was taken and entered by inadvertence and mutual mistake of counsel as to the state of the pleadings and the fact that the case was not at issue; that the defendant had and now has what he believes to be a valid and complete defense to plaintiff's cause of action as well as a valid and substantial counterclaim against the plaintiff.

The errors alleged in the motion for new trial are (1) the court erred in holding that the answer filed in said cause was a collateral attack upon the judgment, and (2) because under the...