Goodwin v. Kochititzky
| Decision Date | 03 March 1928 |
| Docket Number | No. 4376.,4376. |
| Citation | 3 S.W.2d 1051 |
| Parties | GOODWIN et al. v. KOCHITITZKY et al. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Dunklin County; W. S. C. Walker, Judge.
Action by A. W. Goodwin and another, copartners doing business under the firm name of Goodwin & Highfill, against J. S. Kochititzky and another, copartners doing business under the firm name of J. S. Kochititzky & Co. From a judgment against defendant Kochititzky by default, and from an order overruling a motion to set aside the default, defendants appeal. Reversed and remanded, with direction.
Oliver & Oliver, of Cape Girardeau, for appellants.
Ely & Ely, of Kennett, for respondents.
This is an appeal from a judgment against defendant Kochititzky by default and from the order of the court overruling a motion to set aside the default judgment.
On the hearing of the motion to set aside the default judgment, the pleadings in the cause were introduced in evidence, from which we learn that the petition states a cause of action upon a contract in which it is alleged that there is a balance due of $1,816.40 and interest from date of demand.
An answer was filed by defendant Kochititzky, which, in brief, consisted of a denial that he had entered into any contract with plaintiffs and then pleaded a final settlement and full payment as to all matters growing out of the alleged contract. A reply in the nature of a general denial was filed.
The petition was filed May 20, 1926. The answer was filed August 6, 1926. The date of filing the reply is not shown, but it was prior to the July, 1927, term of court. By the filing of these pleadings the issues were made up and the case was in condition to be tried. At the July term, 1926, the parties were present, but the case could not be reached and was continued. At another term the cause was continued at the request of counsel for plaintiff on account of conflicting engagements in the court of another county. In January, 1927, counsel for plaintiff was in the state Legislature and the cause was continued on that account. The July, 1927, term commenced on July 11th and cases on the docket were on that day set for trial. This case was set for trial on July 18th. Counsel for defendant was not present in court on July 11th or on July 18th and on the latter date judgment by default was rendered against defendant.
Counsel for defendant testified in behalf of defendant on the hearing of the motion to set aside the default judgment, and explained why he was not present in court on the 11th and that he did not know of the setting of the case until after the 18th, when default judgment was taken by plaintiff. During the taking of this testimony there were some exchanges of remarks between the court and counse...
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