Field v. Matson

• Decision Date: 31 July 1844
• Citation: 8 Mo. 686
• Court: Missouri Supreme Court
• Parties: FIELD & CATHCART v. MATSON.

8 Mo. 686

FIELD & CATHCART

v.MATSON.

Supreme Court of Missouri.

July Term, 1844.

ERROR TO THE ST. LOUIS COURT OF COMMON PLEAS.

LESLIE, for Plaintiff. By the common law, it is in the discretion of the court to set aside a judgment by default, on affidavit of merit, so that a term is not lost to the plaintiff. Tidd's Pr. 507, 508; Graham's Pr. 634. As the motion was made at the same term, this case would fall within the rule. The Supreme Court of this State seem so far to have modified the rule of the common law, as to require proof of reasonable diligence on the part of the defendant. The present case shows all the diligence that could be expected of a party: the defendants employed an attorney of the court to appear and defend; surely it would not be required that they should stand by him, and see that he did his duty. If there has been neglect, it is imputable only to the attorney, and it is confidently believed that neither in this State, nor elsewhere, can a case be found where the court have refused to relieve against a default incurred solely by the negligence of its own officer. But it is submitted, that the case is not so much one of negligence as of accident. The confusion into which the business of the court had fallen through the sickness of the judge, and of the appointment of the attorney to a public duty, withdrawing his attention from the civil courts, are unusual circumstances, distinguishing this case from others: at least, it is conceived, these circumstances take away from the omission, on the part of the attorney, that character of gross negligence which alone could justify so severe a penalty as the payment of the judgment in this case. It has been objected, that by the Statute, p. 460, § 31, the court has no power to set aside a default after the assessment of damages. It is true that the statute does not give the power. But it is insisted, that the power existed at the common law, and the statute being only in the affirmative, without negative or restrictive words, leaves the common law power unimpaired. In this respect, the language of the statute is plainly distinguishable from the statute regulating Motions for New Trials. In these last cases, Statute, p. 469, § 1, the language is, “all motions shall be made within four days.” The decisions of the Supreme Court on this last statute, and on which the defendant in error is understood to rely, are therefore regarded as inapplicable to the present case. The practice is believed to have been conformable to this construction, and in truth, upon the other construction, the courts would be wholly stript of their power over judgments by default, in that large class of cases where the assessment is made by the clerk, and at the same time that the judgment is entered. Finally, it is submitted, that this case is attended with such circumstances of accident and mistake as would justify the interference of a court of equity, on one of its common grounds of jurisdiction, and it is difficult to perceive any solid reason why it is not competent for a court of law to grant the same relief.

HUDSON and HOLMES, for Defendant. 1. A motion for a new trial must be made within four days after the trial. Rev. Stat. p. 469, § 1. 2. A judgment by default may be set aside for good cause shown, at any time before the damages shall be assessed, but not afterwards. Rev. Stat. 460, § 31. 3. After the damages are assessed, the judgment by default stands on the same footing with regard to a new trial as if rendered upon verdict, and a motion must be made, at least within four days, for a new trial, if at all. Wimer v. Morris, 7 Mo. R. 6. 4. After the four days have elapsed, the court has no longer any power over the subject. Rev. Stat. 460, § 31, 469, § 1; Williams v. the Circuit Court of Saint Louis County, 5 Mo. R. 248; Allen & Dougherty v. Brown, 5 Mo R. 323. In these cases, EDWARDS, Judge, held, that the power of the court over the subject of new trials did not cease, but that, by virtue of common law powers, the subject might be considered at the suggestion of the party, if substantial justice had not been done, but not as a matter of right on motion. In this opinion the majority of the court do not seem to have concurred. 5. But even if the above doctrine be correct, it is clear, that if the new trial be refused, it is nor error, but a matter wholly within the discretion of the court. Ibid. 254. 6. The plaintiffs in error did not use the diligence required by law. Green v. Goodloe, 7 Mo. R. 25; 7 Mo. R. 6.

TOMPKINS, J.

This was an action of assumpsit brought to the September term of the Court of Common Pleas of St. Louis county, for the year 1843, to recover the value of a slave alleged to have been lost through the negligence of the...