Florez v. Uhrig

• Decision Date: 30 June 1865
• Citation: 35 Mo. 517
• Parties: BERNARDINO FLOREZ, Respondent, v. CAROLINE UHRIG, ADMINISTRATRIX OF PHILIP UHRIG, DEC'D, Appellant.
• Court: Missouri Supreme Court

35 Mo. 517

BERNARDINO FLOREZ, Respondent,

v.CAROLINE UHRIG, ADMINISTRATRIX OF PHILIP UHRIG, DEC'D, Appellant.

Supreme Court of Missouri.

June Term, 1865.

Appeal from St. Louis Circuit Court.

Hæussler, for respondent.

This court has decided that it will not interfere with the judgment of the court below, refusing to set aside a judgment by default, when it appears there has been gross negligence on the part of the defendant. (Faber v. Bruner, 8 Mo. 541.)

And again, this court has decided, over and over again, that no distinction is made between the negligence of a party and the negligence of his attorney. (Field v. Watson, 8 Mo. 686; Kirby v. Chadwell, 10 Mo. 392; Austin v. Nelson, 11 Mo. 192; Ridgley v. S. Bt. Reindeer, 17 Mo. 442.)

Nor will this court interfere with the exercise of a discretionary power vested in the court below, unless, perhaps, under peculiar circumstances. (Caldwell v. McKee, 8 Mo. 334; Edwards v. Watkins, 17 Mo. 273.)

The motion to set aside a judgment by default is addressed very much to the discretion of the inferior court. (Kribben v. Eckelkamp, 34 Mo. 480.)

It has also been held by this court, that, in an affidavit to set aside a default, the defendant must state that he has, or believes he has, a meritorious defence, and set out the evidence by which he expects to support it. (Barry v. Johnson, 3 Mo. 372; Lamb v. Nelson, 34 Mo. 501.)

The defendant wholly failed to set out the evidence by which she expects to support her supposed defence. She says she has a defence for not repairing the roof. The petition shows that the plaintiff allowed defendant a certain sum monthly for repairs.

Van Waggoner, for appellant.

LOVELACE, Judge, delivered the opinion of the court.

This is an action to recover a balance due by defendant to plaintiff, growing out of the lease of certain premises to defendant's intestate, Philip Uhrig. The suit was commenced in the lifetime of said Philip Uhrig, in the Circuit Court of St. Louis county, by attachment, under the provisions of the “Act concerning Landlords and Tenants.” Philip Uhrig, by his attorney H. N. Hart, filed a plea in the nature of a plea in abatement; and, on the first day of March, 1862, on motion of plaintiff, the defendant's plea was stricken out, and ten days' time given him to plead. On the 13th day of March, 1862, the plaintiff took a default against the defendant for failing to plead, and at the September term, 1862, (Philip Uhrig, in the mean time, having departed this life,) Caroline Uhrig, the widow and administratrix of Philip Uhrig, filed a motion to set aside the interlocutory judgment and permit her to plead, for reasons set forth in certain affidavits which accompany her motion. The affidavits of herself and another person, setting forth that when the suit was first instituted against Philip Uhrig, he had employed Henry N. Hart, an attorney at law, to defend said action for him; and that Hart told Uhrig that he (Hart) would advise Uhrig of any attention that might be needed, on the part of Uhrig, in the progress of the cause; that Uhrig was taken sick in the beginning of February, 1862, so that he was unable to attend to his business, and continued to grow worse until he died, which was on the 14th day of March, 1862; that the second day after her husband died, Caroline Uhrig called on Hart to ascertain what had been done in the suit, and how much her husband had been sued for, and to learn when the suit would be tried; that Hart told her the suit was for one month's rent, about two hundred dollars, and that nothing could be done for one year. The affidavits also state, that Carolina Uhrig was not aware of the fact that Hart had failed to file...