Fox-Miller Grain Co. v. Stephans

• Decision Date: 05 January 1920
• Docket Number: No. 13482.,13482.
• Citation: 217 S.W. 994
• Parties: FOX-MILLER GRAIN CO. v. STEPHANS.
• Court: Missouri Court of Appeals

217 S.W. 994

FOX-MILLER GRAIN CO. v. STEPHANS.

No. 13482.

Kansas City Court of Appeals. Missouri.

January 5, 1920.

Error to Circuit Court, Jackson County; Daniel E. Bird, Judge.

"Not to be officially published."

Action by the Fox-Miller Grain Company against John Stephans. Judgment for plaintiff, motion to set aside the judgment overruled, and defendant brings error. Affirmed.

Morrison, Nugent & Wylder, of Kansas City, for plaintiff in error.

W. F. Zumbrunn and E. E. Bowers, both of Kansas City, for defendant in error.

ELLISON, P. J.

On the 9th of July, 1914, defendant sold to plaintiff two carloads of wheat. He delivered one car but failed to deliver the other, and plaintiff on the 5th of July, 1915, brought an action for damages, in which he recovered judgment on the 20th of November, 1918, for $400. Afterwards, on the 27th of February, 1919, defendant filed a motion in the trial court to set aside and vacate that judgment. This motion was overruled, and defendant brought the case here by writ of error.

The motion to set aside the judgment is based entirely upon defendant's affidavit attached to the motion and filed with it. In our opinion it presents no reason whatever which would have justified the trial court had it sustained the motion. The affiant states that it was understood between him and one Noll (who, we presume, acted for plaintiff in the purchase of the wheat) that the sale would not be binding until a letter of confirmation was given to him by plaintiff; that in expectation of such a letter he delivered one car of the wheat, but still not getting the letter of confirmation he held the second car, and finally sold it "elsewhere at a price lower than he would have received from plaintiff had the confirmation arrived in due time." This is followed by the statement "that later" plaintiff brought this action, and that in taking the deposition of Noll he (defendant) learned that the latter had received the letter of confirmation and mislaid it. It is next stated:

"That lie retained the late Joseph Fontron to represent him in the case," and "that the last word he had concerning the matter before Sunday, January 19, 1919, was at the time of taking depositions referred to, in which he was represented by local counsel in Hutchinson, Kan.; that later the said Joseph Fontron died; that upon the date last mentioned he found at his home in Hutchinson, Kan., upon his return thereto after an absence of two weeks, a letter from the attorney representing the plain, tiff advising him that judgment had been taken against him on the 20th of November, 1918; that he was in absolute ignorance of the fact that the case had arisen for trial; and that he believes he has a good defense to the action, or one which, if presented, would result in a judgment contrary to that entered."

[] A more indefinite and unsatisfactory paper purporting to give reasons why a judgment rendered on personal service should be set aside and annulled is not frequently seen. But a reference to the record will show that to have been more definite would but have emphasized the lack of merit in the motion. The record shows the action resulting in the judgment sought to be annulled was begun by plaintiff, as stated at the outset, on the 5th of November, 1915, and that on the 7th of the following March, 1916, after demurrers and amended petitions had been filed, he filed his answer. Nothing further was done with the case until more than two years (November 20, 1918), when it was called for trial, and, defendant not appearing, evidence was taken and judgment rendered for plaintiff, as has been stated. No further action was taken by defendant for more than three months, when on the 27th of February. 1919, the motion here involved was filed by him.

It will be noticed that it is not stated in defendant's affidavit when his attorney, Fontron, died; nor is it stated when the depositions were taken at the taking of which he learned that Noll had received, but mislaid, the letter of confirmation written by plaintiff. Neither does the abstract presented by defendant show when the depositions were taken, but it is stated by plaintiff, and not controverted, that they were taken on the 8th of February, 1916, being nearly three years before the judgment was rendered. The upshot of the whole matter is that defendant having filed an answer in a case in which a deposition had been taken a month before, at the taking of which he discovered through Noll's deposition the mishap with the confirmatory letter, fails to even make inquiry as to what had become of his case or his lawyer for nearly three years. And then his information came through plaintiff's attorneys, who informed him of the judgment, and even then he failed to arouse himself from his utter indifference until more than three months when he filed the present motion.

[2, 3] The statute for review is brought into the case. It is provided in section 2101, in connection with sections 2103 and 2104 R. S. 1909, that any time within three years a defendant who has not been summoned or has not appeared, and against whom an interlocutory judgment made final has been rendered, may file his petition for review. Regarding the motion before us as such petition for review, it cannot be of any service to defendant, since here he, as we have already seen,. did appear to the action and file his answer therein. This was expressly decided by the Supreme Court in Jeude v. Sims, 258 Mo. 26, 166 S. W. 1048. Furthermore, such character of motion, authorized by the foregoing statute, "must be one based upon an irregularity which is patent on the record" (State ex rel. v. Riley, 219 Mo. 667. 681, 118 S. W. 647, 651), and no irregularity appears in the rendering of this judgment.

[] And if we regard the motion as in the nature of a writ of error coram nobis, defendant must still be ruled to be without right to relief. If facts dehors the record were unknown, and could not have been known with diligence, and if known, or should have been, would have prevented the judgment, error coram nobis will lie. Jeude v. Sims, 258 Mo. 26, 166 S. W. 1048; Reed v. Bright, 232 Mo. 399, 410, 134 S. W. 653; State v. Stanley, 225 Mo. 525, 532, 125 S. W. 475; Marble v. Vanhorn, 53 Mo. App. 361, 364; Dugan v. Scott, 37 Mo. App. 663; Karicofe v. Schwaner, 196 Mo. App. 565, 196 S. W. 46; Cross v. Gould, 131 Mo. App. 585, 110 S. W. 672. But, as the face of the motion itself discloses, defendant is not within either of these conditions. If anything outside the record was unknown to the court when judgment was rendered, it was that while defendant had appeared to the action and filed an answer thereto he laid dreamily by, without inquiry or excuse, for nearly three years and only roused himself some three...