Gorzel v. Orlamander

• Decision Date: 11 December 1961
• Docket Number: No. 1,No. 48620,48620,1
• Parties: Agnes GORZEL, Respondent, v. Louis W. ORLAMANDER and Marie G. Orlamander, Appellants
• Court: Missouri Supreme Court

Page 675

352 S.W.2d 675

Agnes GORZEL, Respondent, v. Louis W. ORLAMANDER and Marie G. Orlamander, Appellants.

No. 48620.

Supreme Court of Missouri, Division No. 1.

Dec. 11, 1961.

Rehearing Denied Jan. 8, 1962.

Susman, Willer, Rimmel & Elbert, Harold I. Elbert, St. Louis, for appellants.

Harry Gershenson, St. Louis, for respondent.

HOLMAN, Commissioner.

Plaintiff and defendants owned and occupied adjoining residential lots in Normandy, Missouri. In this action plaintiff obtained a judgment by default to the effect that she had acquired an easement by prescription over the north one foot of defendants' lot for use as a part of her driveway. It was also adjudged that defendants should remove a fence they had constructed which interfered with plaintiff's use of said strip of ground. The court overruled defendants' motion to set aside the default judgment and they have appealed. Since the judgment granted an easement over the land of defendants, title to real estate is directly involved and appellate jurisdiction is in this court. Dalton v. Johnson, Mo.Sup., 320 S.W.2d 569.

This suit was filed on May 9, 1960. No pleading having been filed by defendants, an order of 'default and inquiry' was entered by the court on June 17, 1960. Plaintiff appeared on July 8, 1960, and offered evidence in support of the allegations in her petition and the judgment heretofore mentioned was entered on July 13, 1960. However, on the date last mentioned defendants' attorney appeared and sought permission to file an answer, but such was refused and it was 'lodged with the court' and in that manner appears in the transcript. It was in the nature of a general denial.

On July 15, 1960, defendants filed a 'Motion to Set Aside Default Judgment,' which reads as follows:

'Comes now the defendants, L. W. Orlamander and Mrs. L. W. Orlamander and move the court to set aside the default judgment rendered in the above-entitled cause on July 8, 1960 for the following reasons:

'1. That said defendants have a good and meritorious defense to the above-entitled cause of action and that grave injustice and serious damage will result to the defendants unless their defense is heard by this court.

'2. That shortly after service of summons upon these defendants they consulted the undersigned attorney * * * who undertook to represent them in the defense of this matter.

'3. That on May 1, 1960 the undersigned attorney's secretary failed to report for work and though said attorney exerted diligent effort by means of newspaper advertisements and seeking aid from several employment agencies was unable to find and hire a competent secretary until June 9, 1960.

'4. Defendants further state that during this period the undersigned attorney was forced to seek temporary help and that said temporary help furnished was incompetent and unable to meet with the exacting duties of a busy law office which made it necessary for the undersigned attorney to send files and work out of the office to various typists to be completed.

'5. That the answer to the petition filed in the above-entitled cause and the file, though timely dictated was among the work which was sent out of the office for completion and was not returned sufficiently soon to be timely filed.

'6. That due to the pressure and harassment of a busy law practice the undersigned attorney was unable to follow the progress of each of the files sent out of the office, was unaware that the answer to the plaintiff's petition in the above-entitled cause had not been filed and in fact verily believed said answer had been filed.

'7. That the failure to file a timely answer to the petition in the above-entitled cause was not due to the culpable negligence of the defendants or the undersigned attorney.

'Wherefore, defendants move the court to enter an order setting aside the default judgment rendered in the above-entitled cause, prays leave of court to accept defendants' answer to plaintiff's petition, and to set said matter on its trial docket to be tried on its merits and for such other order as the court may deem meet and proper.'

Defendants' motion was argued in September and on October 11, 1960, the court entered the following order: 'Defendants' motion to set aside default judgment heretofore argued and submitted denied becuase court has no authority to set judgment aside, and had no such authority when motion [was] called for argument by plaintiff's counsel.'

Upon this appeal defendants are represented by a different attorney than the one filing the motion in the trial court. Defendants here contend that the motion to set aside was the equivalent of a motion for new trial and hence the trial court erred in ruling that it did not have jurisdiction to set the judgment aside. They say that we should either (1) set the judgment aside, or (2) reverse and remand with directions to the trial court to consider the motion on its merits and exercise its discretion in ruling thereon.

We agree with the result reached in the trial court but are of the opinion that the court was in error as to the reason assigned for overruling the motion. It is obvious that the trial court...