Hall v. McConey

Decision Date05 December 1910
Citation132 S.W. 618,152 Mo. App. 1
PartiesHALL v. McCONEY.
CourtMissouri Court of Appeals

An action against appellant and another, as copartners, to recover $6,000 for the death of a miner in a mine operated by them, was brought in a county other than that in which appellant lived. When the summons was served on him, he communicated with his codefendant and understood that the latter would protect the interests of both in the action. When court convened for the term, defendant had three days in which to answer, and an insurance company, which had insured the other defendant against such action, answered for him, but not for appellant, and, while a motion for security for costs was undisposed of, plaintiff, on the fourth day of the term, dismissed as to the other defendant, and took judgment by default against appellant for $6,000. He learned of the judgment on the next day, and on the day thereafter moved to set aside the default. The case had not been set for trial on the day on which the default judgment was taken, and plaintiff had not prepared for trial on that day, and would not have been inconvenienced if the default had been set aside. Held, in view of all the circumstances, that the trial court abused its discretion in not setting aside the default and permitting appellant to answer to the merits.

6. JUDGMENT (§ 139) — DEFAULT — SETTING ASIDE—DISCRETION OF TRIAL COURT.

The trial court's discretion in passing on a motion to set aside a default judgment is not arbitrary or capricious, but is judicial, and must be exercised upon definite facts from which legal inferences result.

7. JUDGMENT (§ 167) — DEFAULT — SETTING ASIDE—CONDITION.

The court may impose reasonable conditions upon setting aside default judgments.

8. MASTER AND SERVANT (§ 99)—INJURIES TO SERVANT—PERSONS LIABLE.

Where mining operations were conducted by appellant and another in the name of the latter, who had charge of all the operations, both were properly joined as defendants in an action for the death of a miner while working in their mine.

9. APPEAL AND ERROR (§ 1174)—REVERSAL— CONDITIONS—SETTING ASIDE DEFAULT.

The appellate court, on reversing a decision refusing to set aside a default judgment against defendant, may require him to answer to the merits, and waive a technical defense, that the court did not obtain jurisdiction over his person.

Appeal from Circuit Court, Jasper County; David E. Blair, Judge.

Action by Stella Hall against D. C. McConey and another. From a judgment overruling a motion to set aside a default judgment against the defendant named, he appeals. Reversed and remanded, with directions to set aside the default upon the conditions stated, and, upon defendant's failure to perform such conditions, judgment to be affirmed.

J. W. McAntire, for appellant. R. A. Mooneyham and Lee Shepherd, for respondent.

GRAY, J.

This suit was instituted in the circuit court of Jasper county by the plaintiff against the appellant and one William Burns. The purpose of the suit was to recover damages for the death of plaintiff's husband, who was killed in a mine owned by the appellant. The petition alleged that the appellant and one William Burns were partners, engaged in mining for lead and zinc ores in Jasper county; that plaintiff's husband was in the employ of both of said parties and was killed in defendant's mine by reason of certain alleged negligent acts of the defendants. The defendant Burns lived in Jasper county, and the defendant McConey in Jackson county. Personal service was had on both defendants. The defendant Burns appeared and filed an answer, and also a motion to require the plaintiff to give security for the costs of the suit. While that motion remained undisposed of, and on the 4th day of the term, the plaintiff dismissed the cause as to the defendant Burns, and obtained a default judgment against the appellant, who had failed to answer. A jury was waived, and the plaintiff introduced evidence as to the age of her husband, the condition of his health at the time he was killed, and the wages he was receiving, and, after the introduction of said evidence, the court rendered a judgment against the appellant in the sum of $6,000. Two days after the rendition of said judgment, the appellant appeared and filed his motion to set the same aside. The court heard testimony on the motion, and also received a number of affidavits, and overruled the motion. From the judgment overruling the motion, the defendant McConey appealed to this court.

The facts relating to the merits of the motion are about as follows: The defendant Burns was an employé of the appellant and was operating a lead and zinc mine in Jasper county in his own name. The evidence discloses that the appellant had a mining license from the owner of a tract of land to mine the premises for lead and zinc ores; that some difference existed between the owner and the appellant, and the owner attempted to forfeit the rights of the appellant to mine the premises under the license. While matters were standing in this condition, Mr. Burns registered on the lots with the consent of the owner and continued the mining operations of the appellant thereon. Burns was an employé of the appellant, and received nothing for his services but a salary, and had no interest whatever in the mining property. Burns procured accident insurance in his own name to protect him against damage suits instituted by miners on account of personal injuries received. The premium for the insurance was paid from the funds belonging to the appellant.

Plaintiff's husband was killed on the 11th day of February, 1910, and this suit was instituted for the April term of the circuit court of Jasper county for that year. When the summons was served on the appellant at Kansas City, he wrote to Burns about the suit and the position the insurance company would likely take as to its liability, on account of the fact that the appellant was the sole owner of the mine. It appears indirectly from the testimony that notice of the death of plaintiff's husband was given to the accident insurance company, and that company employed Mr. Spencer, of Joplin, to look after the case in its behalf. Burns went to see Spencer about the defense of the case, and there is a difference in the testimony of Spencer and Burns as to what took place at that time. In any event, Spencer afterwards wrote to Burns that he would file an answer for him alone in the cause, which was afterwards done.

It fully appears from the evidence that the entire management and control of the mine was intrusted to Burns by the appellant. It appears from the affidavit of the appellant that he telephoned to Burns to employ a lawyer to defend the case, and that afterwards, and on the first day of the April term of court, Burns telephoned him that he had employed counsel and he would attend to the case and notify him when the case was set for trial.

Appellant, at the hearing on the motion, offered testimony to the effect that one Oscar Rhodes had full and exclusive charge of the underground workings in the mine, and at his own expense was to inspect the walls and roof of the mine and keep the same in a reasonably safe condition; that said Rhodes was to furnish the powder, pay for all appliances necessary for breaking the dirt and carrying the same to the bottom of the shaft to be hoisted to the surface; that said Rhodes had the sole power to hire and discharge all men who worked in said mine; that defendants had no control over that question in any way; and that plaintiff's husband was an employé of Rhodes and was not an employé of either of the defendants.

In support of the affidavits of the appellant and Burns as to the contract between Rhodes and Burns, the defendant offered the affidavit of Oscar Rhodes, also affidavits of several other employés in the mine. And the plaintiff, in support of her contention, offered affidavits of four of the employés that Rhodes was simply the ground boss and an employé of the defendants. The affidavits filed by defendant included affidavits of two of the same persons whose affidavits were filed by the plaintiff, but made two days later than the affidavits filed by plaintiff. The plaintiff maintains that the motion was not timely, as it was made after final judgment had been rendered, and in support of her contention relies on the following cases: Billingham v. Commission Co., 115 Mo. App. 157, 89 S. W. 356; Mathews v. Cook, 35 Mo. 286; and Burnes v. Burnes, 61 Mo. App. 617. In each of the cases above cited, there was an interlocutory judgment by default taken at one term and final judgment at the next. The motions to set aside the judgment were not filed at the term the default judgment was entered, but...

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    ...with the spirit of the law, and in a manner to subserve, and not impede or defeat, the ends of substantial justice." Hall v. McConey, 152 Mo.App. 1, 11, 132 S.W. 618, 621; Savings Finance Corp. v. Blair, Mo.App., 280 S.W.2d 675, 678(8). And the principle, widely recognized in other categori......
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