Gregg v. Johnston, 28221
| Decision Date | 31 January 1977 |
| Docket Number | No. 28221,28221 |
| Parties | Mel GREGG, d/b/a Gregg Decorating Company, Respondent, v. Carl F. JOHNSTON, Appellant. |
| Court | Missouri Court of Appeals |
Kranitz & Kranitz, Ronald M. Sokol, St. Joseph, for appellant.
Martin M. Bauman, St. Joseph, for respondent.
Before WASSERSTROM, P.J., and SOMERVILLE and TURNAGE, JJ.
Mel Gregg obtained a judgment against Carl Johnston and a mechanic's lien on certain property owned by Johnston by default. In this action Johnston filed a petition in which he requested the court to set aside the default judgment and appeals following the order of the court which denied relief.
On this appeal Johnston claims the evidence shows the default was taken against him as a result of surprise and mistake which was not Johnston's fault, and that Gregg admitted the grounds asserted in Johnston's petition because Gregg did not file an answer to such petition. Affirmed.
On May 21, 1974, Gregg filed a petition in the circuit court of Buchanan County against Johnston in which he prayed for a judgment in the total sum of $3,075.25 and for such judgment to be declared a mechanic's lien on the land owned by Johnston on which labor and material had been expended by Gregg. Johnston failed to file any pleading in response to this suit and on July 29, 1974, Gregg appeared with his attorney and obtained a judgment by default.
On April 24, 1975, Johnston filed a petition for equitable relief to set aside the default judgment. In his petition Johnston alleged he had a good and meritorious defense to the cause of action because of defective workmanship. He also pleaded that he failed to appear without any negligence on his own part because he advised Gregg's counsel of his defense and entered into negotiations with such counsel in an effort to settle the matter. He further alleged Gregg's counsel told him no judgment or other action would be taken until negotiations had ceased or broken down and that neither of these events had occurred prior to the entry of the judgment. Johnston further alleged Gregg's counsel deceived him into not appearing by continuing negotiations with no intention of actually settling the cause.
Gregg did not file an answer in response to this petition, but the matter was heard by the court without objection to the absence of an answer.
The only witness at the hearing was Johnston himself. He testified he received the petition and summons sometime in June, 1974. He stated he contacted Mr. Bauman, attorney for plaintiff Gregg, 'probably within a month or so' after he received the pleading. He stated he advised Bauman the work Gregg had done was unsatisfactory and he felt Gregg actually owed him money instead of his being indebted to Gregg. Johnston testified Bauman told him to 'come up with a figure or let him know what it would amount to or what the figures would be if I would settle.
Johnston stated he did not get any figures until the latter part of August, 1974. He further stated Bauman did not give him any time limit within which to come up with a figure nor was he advised by anyone concerning any date the action Gregg had filed would be heard in court.
At the conclusion of the hearing, Johnston's counsel advised the court there had been no showing of fraud but he was relying upon the grounds of 'surprise, accident or mistake without fault of the movant.'
On this appeal Johnston relies upon Cross v. Gould, 131 Mo.App. 585, 110 S.W. 672 (1908); J. R. Watkins Company v. Hubbard, 343 S.W.2d 189 (Mo.App.1961) and Reis v. LaPresto, 324 S.W.2d 648 (Mo.1959). In Cross and Watkins the court held a default judgment would be set aside when it was shown the default was obtained in violation of a promise made by an attorney not to take a judgment. In this case there was no evidence to show any agreement on the part of Bauman not to take a judgment nor is there any evidence to show the default judgment taken in this case was in violation of any statement or agreement Bauman did make. It is interesting to note the proof introduced fell far short of the allegations made in the petition. While the petition alleged the violation of an agreement and promise by Bauman, the proof did not show such agreement or violation....
To continue reading
Request your trial
-
Godsy v. Godsy
...and offered evidence, without objection. In this posture the failure to file responsive pleadings is deemed waived. Gregg v. Johnston, 546 S.W.2d 754 (Mo.App.1977). The Motion and Petition were consolidated for hearing in the trial court, and the hearing was commenced on September 12, 1975,......
-
Cooper v. Anschutz Uranium Corp., s. 42584
...requirement is waived unless the opposing party requests enforcement of the requirement by timely and proper action. Gregg v. Johnston, 546 S.W.2d 754, 756 (Mo.App.1977); Rule 55.09; Cf. Bailey v. Bailey, 317 S.W.2d 630, 632 (Mo.App.1958); Pleiman v. Belew, supra. The record does not show p......
-
Fugett's Estate, In re, 29417
...When Maggie proceeded to trial without objecting to the failure to file an answer, this defect was likewise waived. Gregg v. Johnston, 546 S.W.2d 754, 756(4) (Mo.App.1977). Maggie further contends the Jacobs daughters were not entitled to a jury trial in the circuit court because they faile......
-
Citizens Bank of University City v. Gehl
...If one negligently fails to look after litigation, he has no cause to complain that a judgment should be set aside. Gregg v. Johnston, 546 S.W.2d 754(2, 3) (Mo.App.1977). Furthermore, defendant's motion fails to show a meritorious defense. The trial court did not abuse its discretion in den......