Fisher v. Fisher

• Decision Date: 06 November 1905
• Citation: 90 S.W. 413,114 Mo. App. 627
• Parties: FISHER v. FISHER.
• Court: Missouri Court of Appeals

90 S.W. 413

114 Mo. App. 627

FISHER v. FISHER.

Kansas City Court of Appeals. Missouri.

November 6, 1905.

JUDGMENT — DEFAULT — SETTING ASIDE — MOTION AFTER TERM.

Where defendant in an action was guilty of no negligence in making her defense, but the court was misled into rendering a judgment against her by default, the court had authority after the term at which the judgment was rendered to set it aside on a motion by defendant.

Error to Circuit Court, Jackson County; A. F. Evans, Judge.

Suit by Sallie C. Fisher against Katherine G. Fisher. Motion by defendant to set aside a default judgment. From an order granting the motion, plaintiff brings error. Affirmed.

R. B. Garnett and B. F. Pursel, for plaintiff in error. Walsh & Morrison and E. P. Gates, for defendant in error.

JOHNSON, J.

On November 17, 1903, plaintiff in error brought suit against defendant in error in the circuit court of Jackson county, at Independence, to recover judgment for a part of the purchase price of certain real estate, and to foreclose a vendor's lien for the same. In the petition filed plaintiff stated that defendant bought the land from her, agreeing to pay $6,000 therefor as follows: Defendant was to pay a note secured by a deed of trust on the land which, with interest, amounted to $2,260, and was to pay the remainder, $3,740, to plaintiff in cash upon the delivery of the deed. It was admitted that defendant discharged the incumbrance as agreed, and paid $100 to plaintiff; but it is charged that she failed to pay the remainder of the purchase price upon the delivery of the deed, or at any time thereafter. The summons issued was made returnable to the December term, but was not served, and during that term an alias summons was issued returnable to the March term. This summons was served January 30, 1904. No answer or plea was filed by defendant, and on April 6th, during the March term, plaintiff with her counsel appeared in open court and asked for judgment by default. A final judgment was thereupon entered in her favor, as prayed for in the petition. On June 28, 1904, during a subsequent term, defendant appeared and filed a motion to set aside the judgment. Due notice was served upon plaintiff of the filing of this motion, and affidavits were filed in support thereof.

The facts stated in the motion and verified by the affidavits are as follows: The purchase price of the land was $4,260, instead of $6,000 as alleged in the petition. Defendant paid it in full by discharging the incumbrance of $2,260, and in paying the remaining $2,000, in cash to plaintiff, for which she claimed to hold plaintiff's receipts; the one for the final payment being dated May 4, 1903. Immediately upon being served with summons in January, 1904, defendant employed Mr. Walsh, an attorney, living in Kansas City, to defend the action. She acquainted him with the facts and delivered to him the receipts showing payment in full of the price agreed. Shortly thereafter, Mr. Walsh interviewed the plaintiff's attorney of record, and advised him of the facts upon which defendant relied to defeat the action. It was then agreed by these attorneys, to take the depositions of the plaintiff and defendant, for the purpose of ascertaining the true facts, and if it appeared from the evidence thus adduced that defendant was right in her contention, the action would be dismissed without further cost. Further, it was agreed that in the meantime, before the depositions were taken and the final disposition of the case agreed upon, defendant should file no answer nor plea, nor take any other steps in the case, increasing the costs, and if the cause was set for trial, it should be continued, and would not be taken up, unless by agreement of the parties. Relying on this agreement no answer was filed. The case was set for trial on the 22d of March. Walsh telephoned an attorney in Independence, stating his agreement with the counsel for plaintiff, and requesting the attorney to appear in court and attend to having an order of continuance made, in accordance with the agreement. This was done and plaintiff's counsel notified of the fact. The following entry was made upon the judge's docket: "This case was continued from last term for service to March term. Issues not made up. Case to be tried later on if parties can agree." This was in the handwriting of the clerk, and was followed by the word "Cont'd" in the handwriting of the judge. Plaintiff's counsel did not advise Mr. Walsh of his intention to take judgment by default. Afterwards plaintiff filed a motion "to strike off, set aside, and dismiss" the motion filed by defendant. At the hearing of these motions plaintiff did not attempt to controvert the facts shown in the affidavits filed by defendant, as detailed. During the argument the court made this statement: "I remember when this case was tried that I asked plaintiff's counsel whether the defendant wished to make any defense, and he told me that the defendant did not desire to defend the suit; otherwise, I should not have rendered this judgment." Plaintiff's counsel then told the judge that he "was mistaken as to what plaintiff's attorney said; that, when the question was asked as to what the defense was in the...