Fritzsche v. East Texas Motor Freight Lines, 32404

• Decision Date: 17 May 1966
• Docket Number: No. 32404,32404
• Citation: 405 S.W.2d 541
• Parties: Walter FRITZSCHE, Plaintiff-Appellant, v. EAST TEXAS MOTOR FREIGHT LINES, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 541

405 S.W.2d 541

Walter FRITZSCHE, Plaintiff-Appellant, v. EAST TEXAS MOTOR FREIGHT LINES, Defendant-Respondent.

No. 32404.

St. Louis Court of Appeals, Missouri.

May 17, 1966.

Motion for Rehearing or for Transfer to Supreme Court Denied

June 14, 1966.

Application to Transfer Denied Sept. 12, 1966.

Gray & Sommers, St. Louis, for plaintiff-appellant.

Schwartz & Ely, Robert C. Ely, St. Louis, for defendant-respondent.

ANDERSON, Judge.

This is an appeal by plaintiff from an order of the Circuit Court overruling plaintiff's motion to set aside a judgment entered in his favor upon a verified confession of judgment filed by defendant.

The suit was instituted by the filing of a petition on July 15, 1964, in the Circuit Court of the City of St. Louis by Walter Fritzsche against East Texas Motor Freight Lines. It was an action for damages for personal injuries alleged to have been sustained by plaintiff on October 15, 1963 as a result of a violent collision on Highway 66, in Illinois, between a tractor with other equipment attached thereto being operated by plaintiff and a vehicle operated by defendant through its agents, servants, and employees. The collision was alleged to have occurred at a point approximately one-half mile south of the intersection of Highway 66 and Highway 138. It was further alleged that plaintiff was operating his vehicle southwardly on Highway 66 and that defendant's vehicle collided with the rear of plaintiff's vehicle; and that said collision and plaintiff's injuries were directly and proximately caused by the negligence in the operation, maintenance and control of defendant's vehicle. Judgment was prayed for in sum of $10,000.00 and costs.

On July 29, 1964, defendant filed an answer in said cause, which after admitting its corporate existence and the facts with reference to the collision, except the allegation that the collision was violent, denied the allegations that the collision and plaintiff's injuries were caused by defendant's negligence.

On August 31, 1964, defendant filed a Confession of Judgment in said cause in words and figures as follows, to wit:

'CONFESSION OF JUDGMENT

'COMES NOW defendant and confesses judgment in favor of plaintiff and against defendant in the sum of TEN THOUSAND ($10,000.00) DOLLARS, the ad damnum of plaintiff's Petition, and costs; and defendant hereby pays into the registry of the Court, for the use and benefit of plaintiff, the sum of $10,018.60, for such judgment and costs.'

Thereafter, and on the same day, defendant filed with the clerk the following memorandum in said cause:

'MEMORANDUM FOR CLERK

'Defendant confesses judgment in the amount of $10,000.00 and costs. $10,018.60 paid into registry of Court.

'Judgment entered in favor of plaintiff and against defendant in the sum of $10,000.00.

SO ORDERED: /s/ Wm. H. Killoren, Judge, No. 1'

Judgment was thereupon entered in said cause which is in words and figures as follows, to wit:

'It is ordered by the Court that this cause be assigned to Division No. One.

'Now at this date comes the plaintiff by attorney and submits to the Court its petition, heretofore filed and also submits to the Court a verified confession of judgment filed by the defendant, and the Court having seen and examined the same, and being sufficiently advised thereof, doth find in favor of the plaintiff and against the defendant for the sum of $10,000.00.

'WHEREFORE, it is considered and adjudged by the Court that the plaintiff have and recover of the defendant the sum of TEN THOUSAND and NO/100 ($10,000.00) DOLLARS, together with the costs of this suit, and that execution issue therefor.

'It is further ordered by the Court that the defendant pay into the registry of the Court the sum of $10,000.00 together with the sum of $18.60, being the costs of this suit.'

On September 9, 1964, plaintiff filed in said cause a verified motion to set aside the judgment, and as grounds for said motion alleged:

'1. The court's order entering judgment in favor of plaintiff and against the defendant in the sum of $10,000.00 is void.

'2. The court was without jurisdiction in entering said order.

'3. The order of the court entering judgment favor of plaintiff and against the defendant in the sum of $10,000.00 is null and void.

'4. Plaintiff first states that this action was instituted on or about July 16, 1964. At the time of the institution of the lawsuit the same was prepared and filed by Charles E. Gray, as attorney for plaintiff, and therein damages in the sum of $10,000.00 was prayed for. At the time of the institution of said petition, Charles E. Gray, as plaintiff's counsel, was not fully advised of the nature, character and extent of the injuries and damages sustained by plaintiff, Walter Fritzsche. After the institution of said action further investigation was made by said attorney and this investigation now reveals that plaintiff sustained severe, permanent and disabling bodily injuries. He incurred or became indebted for necessary medical, hospital and surgical care and treatment in excess of $1200.00, and will continue to incur expenses for such care and treatment in the future. In the accident giving rise to his cause of action plaintiff's personal property was so damaged as to reduce its reasonable market value in excess of $5,000.00. Plaintiff further states that his attorney's investigation is still not complete and said attorney's file does not, as yet, contain sufficient information upon which to file an amended petition alleging all of the specific injuries and damages sustained by plaintiff, but that, on information and belief, it is alleged that plaintiff is entitled to recover from defendant a sum far in excess of the $10,000.00 judgment entered as aforesaid.

'5. Plaintiff further states that his judgment was obtained by defendant ex parte, with no notice thereof having been previously served upon plaintiff or his counsel, thus neither plaintiff nor plaintiff's counsel were given any opportunity to make any objections thereto.

'6. Plaintiff further states that no notice was given to plaintiff by the court of its intention to enter such judgment * * *.'

The prayer of the motion was to set aside the judgment, reinstate the case on the docket and afford plaintiff an opportunity to file an amended petition.

The foregoing motion was overruled on January 14, 1965. On January 20, 1965, plaintiff appealed to the Supreme Court from the Court's order overruling said motion. That court on September 1, 1965, held it was without jurisdiction of the appeal and did on said date transfer the cause to this court.

It is appellant's contention that the judgment is null and void for the reason that defendant in securing same failed to follow the procedural steps provided for in Civil Rule 77.25, V.A.M.R., and failed to give notice to him...