Fleming v. McCall, 4735.

• Decision Date: 15 January 1931
• Docket Number: No. 4735.,4735.
• Citation: 35 S.W.2d 60
• Parties: FLEMING v. McCALL et al.
• Court: Missouri Court of Appeals

35 S.W.2d 60

FLEMING v. McCALL et al.

No. 4735.

Springfield Court of Appeals. Missouri.

January 15, 1931.

Rehearing Denied February 20, 1931.

Appeal from Circuit Court, Barry County; Emory E. Smith, Judge.

"Not to be officially published."

Action by Mrs. W. J. Fleming against Marcus M. McCall, Estella Kemp, and D. H. Kemp. Judgment for plaintiff, and defendants, except defendant first named, appeal.

Affirmed.

Barrett & Kemp, of Springfield, for appellants.

L. W. Eubanks, of Monett, for respondent.

SMITH, J.

This action was commenced in the circuit court of Barry county based upon a petition, with promissory note attached, wherein the plaintiff sought judgment upon said note for the amount of the principal and interest as provided in the note, less $10 theretofore paid on the interest, and for 10 per cent. of the amount due as attorney fee as provided in the note.

Service was had upon all the defendants, returnable to the March term, 1929, and at that time defendants Estella Kemp and D. H. Kemp filed an answer, pleading a release as to them because upon the payment of $10 the plaintiff had extended the time of payment of said note for one year without the knowledge or consent of them, who were accommodational indorsers and sureties upon said note. We deem it unnecessary to set out the pleadings in full.

Marcus M. McCall filed no answer, but made default, and at that time a default judgment was rendered against him for the amount of principal, interest, and attorney fee, as provided in the note, and the cause was continued as to Estella Kemp and D. H. Kemp to the next term of court.

At the June term, 1929, on the 1st day of July, defendants Estella Kemp and D. H. Kemp, limiting their appearance to the attacking of the jurisdiction of the court, filed their motion to strike said cause from the docket. On the 2d day of July, the plaintiff filed her motion to set aside her judgment against Marcus M. McCall.

At the same term of court, on July 5, the motion of the Kemps to strike said cause from the docket was by the court overruled, and on July 6, at the same term of court, the motion to set aside the judgment against Marcus M. McCall was sustained, and on the same day judgment was again rendered by default against Marcus M. McCall, and the judgment was also against the Kemps. The part of the judgment referring to the Kemps is as follows: "And the said defendant D. H. Kemp and Estella Kemp, although duly called on this day come not, but make default, and though having heretofore answered plaintiff's petition, say nothing further in bar or in preclusion to the action, and plaintiff waiving a jury to assess the amount of debt herein submits her cause to the court for hearing, and the court proceeds to hear the evidence on the part of the plaintiff. The court, being fully advised in the premises, finds the issues in favor of the plaintiff and against these defendants, the same being an action on a promissory note in the sum of six hundred ninety-one and eighty-eight hundredths ($691.88) dollars principal and interest, and the sum of sixty-nine and eighteen hundredths ($69.18) dollars as attorney fee according to the tenure and reading of said note, making the total sum of seven hundred sixty-one and six hundredths ($761.06) dollars, and her costs in this behalf expended for which execution issue therefor."

On the same date of the judgment, July 6, 1929, the defendants Estella Kemp and D. H. Kemp filed their motion for new trial and motion in arrest of judgment, which were by the court overruled, and they appealed.

We do not set out the motion for new trial because the appellants claim there is but one question here, and that is as set out in their statement, which is as follows: "There is but one question raised by this appeal. Can a trial court after rendering a final judgment against one of three defendants at a subsequent term, set that judgment aside and without further action render another judgment against all the defendants? In the case at bar, the appellants filed their answer at the return day. The other defendant was duly summoned but did not answer at that term of court. The court rendered a...