Force v. Margulius

• Decision Date: 06 January 1931
• Docket Number: No. 21358.,21358.
• Parties: FORCE v. MARGULIUS.
• Court: Missouri Court of Appeals

33 S.W.2d 1023

FORCE v. MARGULIUS.

No. 21358.

St. Louis Court of Appeals. Missouri.

January 6, 1931.

Rehearing Denied January 23, 1931.

Appeal from Circuit Court, St. Louis County; Julius R. Nolte, Judge.

"Not to be officially published."

Action by Margaret T. Force against Isadore M. Margulius. Plaintiff recovered judgment by default, and defendant filed a petition for review. From an order striking the petition for review from the files, defendant appeals.

Motion to dismiss appeal overruled, and order affirmed.

Jacob Mellman, of St. Louis, for appellant.

Gustave A. Stamm and Maurice L. Stewart, both of St. Louis, for respondent.

BENNICK, C.

This is an appeal from an order of the circuit court of St. Louis county sustaining respondent's motion to strike appellant's petition for review from the files.

On May 9, 1927, respondent instituted an action against appellant in the circuit court of St. Louis county, the petition alleging that appellant was indebted to respondent in the sum of $500, with interest; said amount being the balance due on account of the rental of furniture over a stated period.

Summons was thereupon issued, and on May 11, 1927, service of the same was duly had upon appellant by leaving a copy of the writ and petition at his usual place of abode, with a member of his family over the age of 15 years.

No answer was filed by appellant, and on December 8, 1927, default was taken against him, and the cause ordered docketed for trial on the following December 16th. On that day, a jury being waived, the cause was heard before the court alone, resulting in the entry of a judgment in favor of respondent, and against appellant, in the sum of $568.75, with costs.

Such proceedings were had at the September, 1927, term of court. Thereafter, on July 23, 1929, during the May, 1929, term of court, appellant filed in the cause his petition for review, in which he alleged that, after service of summons, he went to the office of S. T. G. Smith, respondent's original attorney, and inquired of him in regard to what could be done about the case; that Smith informed him that respondent was out of the city, but that, when she returned, he would get in touch with appellant, and let him know what could be done, that meanwhile appellant need not concern himself about the action until he heard from Smith; that, pursuant to such advice, appellant let matters rest; that, without advising appellant, the respondent took judgment, of which fact appellant did not learn until his time for appeal or writ of error had elapsed; and that appellant was informed that the said Smith was ill at the time, and that the attorney associated with him in the case was not familiar with the understanding entered into preceding the taking of the judgment.

It was further alleged that appellant had a good and meritorious defense to the action; that the petition for review was not filed for the purpose of delaying justice, but in truth and sincerity, because a great injustice would be imposed upon appellant if he should be denied a review of the judgment; and that he stood ready to file the necessary pleadings in the cause, and to agree upon an early setting of the same for trial in order to facilitate the matter.

The prayer was for an order of review in the cause; that execution be recalled upon appellant's offer to give a bond sufficient to indemnify respondent from any damage arising by reason of such recall; and for such other orders as justice to the parties might require.

On the same day the indemnifying bond was filed and approved, and the execution theretofore issued was recalled and ordered to be stayed pending disposition of the petition for review.

Thereafter, on August 20, 1929, in vacation, respondent filed in court her special entry of appearance and motion to strike the petition for review from the files, setting up as grounds of the motion that the petition did not state the facts esesntial to a statutory petition for review; that the court was without jurisdiction to entertain the petition for the reason that the record proper in the cause disclosed that appellant had been personally served with process prior to the entry of the default and final judgments against him; and that the fact of personal service was admitted by appellant upon the face of his petition.

On November 4, 1929, respondent's motion was sustained, and the petition for review ordered stricken from the files; and it is from such order of the court, following the overruling of his motion for a new trial, that appellant has been granted this appeal.

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