Faber v. Bruner

• Citation: 13 Mo. 541
• Parties: CHARLES FABER v. LORENTZ BRUNER.
• Decision Date: 31 October 1850
• Court: United States State Supreme Court of Missouri

13 Mo. 541

CHARLES FABER

v.LORENTZ BRUNER.

Supreme Court of Missouri.

October Term, 1850.

ERROR TO ST. LOUIS COURT OF COMMON PLEAS.

WHITTELSEY, for Plaintiff.

1st. That this court will sometimes review the discretion of the courts below, see case of Stout v. C. & T. Lewis, 11 Mo. R. 438. In New York it is the constant habit to set aside judgments by default at the same time, upon affidavits showing meritorious defense and due diligence, or an excuse for the want of it. By the Code of 1845, p. 815, § 42, upon an interlocutory judgment, the equity of damages shall be made at the next term after the default, unless the court direct it to be made at the same term In this case the court made the order for an assessment of damages at the same term, but gave the defendant no day in court, no notice was given to the defendant, and that too in a case where most especially the defendant should have had an opportunity of at least showing some mitigating circumstances, or of showing the condition in life of the parties. The case of Evans v. Bowlin, 9 Mo. R. 406, seems to cover this precise point fully. The law was the same then as now, the statute was the same. No notice was given by the docket when the damages would be assessed. The docket was not made out and exposed in the clerk's office as required by law. But farther still the damages were not assessed upon the day upon which the cause was set upon the docket. But they were assessed upon a day when the party was not required to be present, at a time when he had no notice, appointed without authority of law, and for these irregularities, the defendant is entitled to have the assessment of damages set aside, and a new writ of inquiry was awarded. Rev. Code, 815, § 42; Evans v. Bowlin, 9 Mo. R. 406. By Rev. Code, 1845, p. 132, § 14: Every clerk is required before the commencement of the term to make out a docket of all cases for trial, inquiry of damages, &c. There is no pretense that in this case any such thing has been done. The plaintiff contends in this case that upon the facts stated in the affidavit of the defendant below, that the defendant had good reason to believe that the matter between the parties was all settled, and the judgment by default was such a surprise, as should have required the court to set aside the default, and allow the defendant to plead.

2nd. The fact that plaintiff remitted the sum of seven hundred and fifty dollars, shows that there was something out of the way, and unusual and unjust, or the plaintiff never would have consented to waive more than half of his verdict.

3rd. The court below should have set aside the assessment of damages, because the same was taken irregularly, illegally and without notice to the defendant of the day the damages would be assessed. See Evans v. Bowlin. 9 Mo. R. 406.

HUDSON & HARVEY, for Defendant. 1. The affidavit of Faber was insufficient to set aside the judgment by default. The affidavit discloses no diligence on the part of the defendant below. Green v. Goodloe, 7 Mo. R. 25. That because plaintiff made professions of friendship to defendant cannot surely excuse him from the examination of a suit which was then actually pending against him. 2. As the motion to set aside the judgment by default was made after the assessment of damages, said motion ought not to have been allowed. See Code p. 814, § 37. By the 1st section of the 3rd article under the head of Practice at Law, Code, p. 809, “Every defendant served with process fifteen days before the return day thereof, shall appear,” &c. By the law as it existed before the statute of 1845, an imparlance term was allowed. Hence the case of Evans v. Bowlin, 9 Mo. R. 406, is not applicable to the case at bar. We insist that under the law approved March 27, 1845, all causes where the process was served fifteen days before the return day of the September term, 1846, were triable at that term, and as the process in the case was served more than fifteen days before the return day thereof, the defendant, Faber, like all other defendants, at that term was bound to make his defense.

RYLAND, J.

From the statement of this case the questions before us involve the proper exercise of judicial discretion in the court below; arising on the want of diligence on the part of defendant.

This court has almost invariably refused its interference in such cases, deeming the lower courts fully competent to the proper exercise of such discretion. Lord Coke...