Fisher v. Mahler, 24531

• Decision Date: 03 October 1966
• Docket Number: No. 24531,24531
• Citation: 407 S.W.2d 590
• Parties: Harriet FISHER v. Stephen MAHLER.
• Court: Missouri Court of Appeals

Page 590

407 S.W.2d 590

Harriet FISHER v. Stephen MAHLER.

No. 24531.

Kansas City Court of Appeals, Missouri.

Oct. 3, 1966.

Wyman Wickersham, Thomas J. Conway, Jr., Kansas City, for appellant, Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel.

Robert S. McKenzie, McKenzie, Williams, Merrick, Beamer & Stubbs, Kansas City, for respondent.

SPERRY, Commissioner.

Plaintiff, Harriet Fisher, sued Stephen Mahler and Libby Clark, defendants, for damages alleged to have been suffered by plaintiff when the automobile which plaintiff was operating came into collision, on a street in Kansas City, with an automobile owned by Libby Clark and being operated by defendant Mahler. That suit was dismissed as to defendant Clark and, at the same session of circuit court, a default judgment in the amount of $5,000.00 was entered in favor of plaintiff and against Mahler. Mahler, within three years after rendition of the judgment, moved to set same aside on the ground of irregularity. The court sustained the motion and set the judgment aside. Plaintiff refused to try the cause on the merits and appealed from the order and judgment of the court.

This action to set aside the default judgment is founded on the provisions of Section 511.250, V.A.M.S., which limits the time within which a judgment can be set aside for irregularity. Cross v. Gould, 131 Mo.App. 585, 110 S.W. 672. The statute is further implemented by Civil Rule 74.32, V.A.M.R.

The judgment complained of is, in fact, an irregular judgment, although it is referred to as a 'default' judgment. It was irregularly entered as a default judgment. Mahler was not in default at the time the judgment was rendered. There was then on file an answer to the petition of plaintiff Fisher; but Judge Stubbs, who was sitting when the case was called up for trial and who rendered the default judgment, did not know that such answer was on file but acted on the assumption that it was a default case. He testified as a witness in the instant hearing that he would not have rendered this default judgment agaisnt Mahler had he known the true facts, but that he would have caused the giving of notice to Mahler of a setting for trial, which was not done.

The order and judgment entered herein is appealable, as appears from the facts herein. Casper v. Lee, 362 Mo. 927, 245 S.W.2d 132, 137 (Par. 5--8). The court there said that a motion, such as this, must be based on an irregularity which is patent of record (as this one is). The court then said: 'An irregularity may be defined to be the want of adherence to some prescribed rule or mode of proceeding; and it consists either in omitting to do something that is necessary for the due and orderly conducting of a suit, or doing it in an unseasonable time, or improper manner'. The court further said that such irregularities of fact 'must be such as would have prevented, if known, the rendition and entry of the judgment challenged, and are to be distinguished from ordinary judicial errors is a judgment reached in accord with established rules of procedure'. As supporting the above statements of law, see Cross v. Gould, 131 Mo.App. 585, 110 S.W. 672, 675, et seq.; Audsley v. Hale, 303 Mo. 451, 261 S.W. 117, 121.

Mahler, a resident of Flushing, New York, a law school student at New York University, had been vacationing in California. Through a 'Drive-Away' service he arranged to drive Libby Clark's automobile from California to the east coast. Miss Clark, her mother, and her nephew were passengers. While passing through Kansas City, July 8, 1961, this collision occurred. Miss Clark and her mother were hospitalized. Mahler posted bond for appearance in Traffic Court and then proceeded on to New York. He arranged, by mail, for attorney Charles Svoboda, of Kansas City, to represent him on the traffic charge which was, later, dismissed. On July 20, 1961, he received summons and petition in a suit filed by plaintiff in this case, wherein she sought damages against him and Miss Clark, on account of the aforementioned collision. He forwarded the papers to Miss Clark in California, under the mistaken belief that Miss Clark, the owner of the car, had liability insurance that protected both her and Mahler.

On August 4, 1961, attorney Leona Pouncey of Kansas City, filed an answer for both defendants and a counterclaim for Miss Clark. Svoboda wrote Mahler, August 23d, that he had talked to Mr. Wickersham (plaintiff's attorney in this case), who told him that Mrs. Pouncey had filed answer for both defendants; that, from Svoboda's knowledge of such...