Green v. Goodloe

• Decision Date: 31 May 1841
• Citation: 7 Mo. 25
• Parties: GREEN v. GOODLOE.
• Court: Missouri Supreme Court

7 Mo. 25

GREEN

v.GOODLOE.

Supreme Court of Missouri.

May Term, 1841.

APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY.

POLK, for Appellant. The appellant maintains that the court below ought not to have overruled his motion to set aside the judgment rendered against him by the court below for want of a plea, and to grant him leave to plead issuably to the merits instanter, and relies on the following positions: 1. That the affidavit of the defendant below shows a good cause for setting the judgment aside. Stat. of Mo. 460, § 31; 1 Tidd's Practice, 507-8; 3 Chit. Gen. Practice, 680, 681. 2. The affidavit shows that the defendant below used due diligence to avail himself of his defense. 4 Mo. R. 557, Lecompte and Wife v. Wash.

____, for Appellee. The main question is, whether the court below did right in refusing to sustain the motion to set aside the judgment? The defendant in error holds the affirmative, and cites the following authorities to show that the affidavit does not show sufficient diligence on the part of Green. 4 Mo. R. 557: Rev. Code, 460, § 31, &c. 6 Wend. R. 517.

And further, that this is not such a judgment as will authorize an appeal.

NAPTON, J.

Goodloe sued the appellant by petition in debt on two promissory notes. The defendant was personally served with process, and on the third day of the return term (July 22) judgment was rendered against him by default. The court adjourned over from the 6th day of August until the 24th of the same month, when the defendant filed an affidavit and moved the court to set aside the judgment by default, and grant him leave to plead issuably to the merits instanter, which motion the court on a subsequent day considered and overruled. To this decision of the court the defendant excepted. The affidavit of Green swears to the existence of credits and offsets, and also states certain circumstances which has induced a belief in his mind that the notes have been paid, by giving other notes in exchange for them. The affidavit also states that the affiant intended to plead to the said action, and for that purpose had called upon an attorney, but had not found him at his office, and supposing that if his pleas were put in by the sixth day of the term, they would be in time, he did not again call on his attorney until Friday of the first week of the term, when he was informed that judgment had gone against him by default. The only question is, whether the court erred in overruling the motion to set aside the...