Haines v. Jeffrey Mfg. Co.

• Decision Date: 15 September 1930
• Docket Number: No. 21157.,21157.
• Citation: 31 S.W.2d 269
• Parties: HAINES v. JEFFREY MFG. CO.
• Court: Missouri Court of Appeals

31 S.W.2d 269

HAINES v. JEFFREY MFG. CO.

No. 21157.

St. Louis Court of Appeals. Missouri.

September 15, 1930.

Rehearing Denied October 16, 1930.

Appeal from St. Louis Circuit Court; Claude O. Pearcy, Judge.

"Not to be officially published."

Action by John Haines against the Jeffrey Manufacturing Company. Judgment of default in favor of plaintiff. From an order overruling motions to supply lost pleading and to set aside the judgment, defendant appeals.

Affirmed.

D. E. Keefe, of East St. Louis, Ill., and Charles A. Houts, of St. Louis, for appellant.

Bartley & Mayfield, of St. Louis, for respondent.

NIPPER, J.

This is an appeal from an order of the circuit court overruling a motion to set aside a judgment by default. The facts which brought about this appeal may be stated as follows: On the 22d day of January, 1927, the plaintiff filed in the circuit court of the city of St. Louis, his petition to recover for damages on account of certain alleged injuries which he sustained while working for the defendant. Summons was issued on this petition returnable to the February, 1927, term of said court. A non est return was made on this summons by the sheriff. Later an alias summons was issued returnable to the June, 1927, term of said court. On this alias summons the sheriff made a return that he had served the same on J. S. Davis, chief clerk of the defendant, and that said J. S. Davis was in the defendant's usual place of business and in charge thereof, and that the president or other chief officer of defendant could not be found in the city of St. Louis. This service was had on the 28th of March, 1927. Afterwards, a pluries summons was issued, and this showed service on the defendant on the 4th day of October, 1927, by service on J. Davidson, chief clerk of the defendant, in defendant's usual business office and in charge thereof, and also stating that the president or other chief officer of the defendant could not be found in the city of St. Louis. This summons was returnable to the December term, 1927.

So far as the records of the court disclose, no kind of pleading was filed by the defendant in answer to this petition and summons. Default was granted, and on April 25, 1928, and during the April term, the court, on a hearing, rendered judgment in favor of plaintiff for the sum of $1,500.

On the 24th day of December, 1928, and after the expiration of at least two terms of court, the defendant filed a motion to set aside this judgment, and on June 14, 1929, an application to supply lost pleadings supported by certain affidavits.

Plaintiff's counsel objected to the introduction of any testimony seeking to attack the judgment of the court after the term had expired at which it was rendered. In support of this motion to set aside the judgment, which defendant seeks to treat as a writ of error coram nobis, evidence was introduced, over plaintiff's objection, tending to show that shortly before the beginning of the June term, 1927, D. E. Keefe, a lawyer of East St. Louis, Ill., received from the defendant a copy of the petition. He sent what is termed a plea in abatement, by a young man from his office, to be filed in this case. When he appeared in the office of the clerk of the circuit court of the city of St. Louis, he was informed that the files were not in the office, and therefore he was unable to see them. He then went to the sheriff's office to ascertain what kind of a return had been made, and was told that no return had been made. He had been informed that service was made on J. S. Davidson, and, after ascertaining these facts, he filed what is called a plea in abatement or a motion to quash service. We are now stating the facts as they appear by the testimony offered by the defendant in support of this motion to vacate the judgment, or in support of the writ of error coram nobis. This motion alleged that J. S. Davidson was not an agent or representative of defendant. When he appeared in the office of the clerk of the circuit court, he was informed that the files of the case were not in the office, but the clerk took his pleading, and told him he would place it with the files when they were returned. Mr. Keefe, the East St. Louis attorney,...