Harbor v. Pacific R.R. Co.

• Decision Date: 31 July 1862
• Citation: 32 Mo. 423
• Parties: MORGAN HARBOR et al., Plaintiffs in Error, v. PACIFIC RAILROAD COMPANY, Defendant in Error.
• Court: Missouri Supreme Court

32 Mo. 423

MORGAN HARBOR et al., Plaintiffs in Error,

v.PACIFIC RAILROAD COMPANY, Defendant in Error.

Supreme Court of Missouri.

July Term, 1862.

Error to Osage Circuit Court.

Parsons, for plaintiffs in error.

The only point in this case, is whether, after the term at which a final judgment is rendered, the court can interfere with it. There was no irregularity in the proceedings in this cause. There was an answer regularly filed in the cause, and the issues tendered by it were presented to the jury on the trial; the answer was read to the jury at the trial. The only objection is the form of the judgment entered, which is only a clerical error not affecting the regularity of the trial or the force of the judgment. (See Ashby v. Glasgow, 7 Mo. 320; Hill v. City of St. Louis, 20 Mo. 584; Brewer v. Dinwiddie, 25 Mo. 351; 13th clause, 19th sec., art. 9 of Prac. Act; also, sec. 20, same Act, p. 1256-7, 2 R. C.)

Plaintiffs therefore insist that the judgments of the court at November term, 1860, setting aside the judgment at November term, 1859, and the judgment of the court dismissing this suit, ought to be reversed and held for naught, and the judgment of November term, 1859, reinstated and affirmed.

Aikman Welch, for respondent.

I. The court did not err in setting aside the final judgment rendered in this cause at its November term, 1859, though the motion to set the same aside was not filed at the same term at which such judgment was rendered. Such final judgment was wholly irregular and erroneous. It professes to be a judgment by default and confession, for want of answer, and an inquiry of damages at the same term, and that, too, after a sufficient answer had been filed. Such judgment is erroneous. The proceedings were irregular; and the court will, on motion, at a subsequent term--the irregularity being shown to its satisfaction--set the judgment aside, or do whatever the justice of the case may require. (Brewer v. Dinwiddie, 25 Mo. 351; Ashby v. Glasgow, 7 Mo. 320; Hunt et al. v. Yeatman, 3 Hammond, O., 16.)

DRYDEN, Judge, delivered the opinion of the court.

In this case, the plaintiffs sued the respondent for damages occasioned by certain excavations made by the defendant on the lands of the plaintiffs in the construction of its railroad. The petition contains three counts: in one, the damages are held at two hundred and fifty dollars; in another, at one thousand dollars, and in the third, at two thousand dollars. The defendant answered, putting in issue all the material allegations of the petition. The case was continued, from term to term, two successive terms after that at which the answer was filed. At the November term, 1859, the case standing regularly for trial, the court empanelled a jury and proceeded with the trial in the absence of the defendant, who failed to appear. After hearing the evidence offered by the plaintiffs, the jury found a verdict for the plaintiffs for two thousand two hundred and fifty dollars damages, on which the court rendered judgment. The entry of the proceedings of the court on the trial is exceedingly inartificial and informal, partaking of some of the formalities of a judgment by default, and of some of those of a mere inquiry of damages; yet, taking all the record together, it is plain enough that the verdict was made upon a hearing of the evidence and in response to the issues, and that the judgment of the court was based upon the finding of the jury, and not upon the default of the defendant.

At the succeeding term of the court (May, 1860,) the defendant, by attorney, appeared and filed a motion to set aside the judgment in these words, viz:

“The Pacific railroad, by their attorney, John D. Stevenson, comes and moves the court to set aside the judgment heretofore rendered in the cause for the following reasons, to wit:

Because said judgment is oppressive and excessive, irregular and defective in this: said judgment is a judgment by default, and confession, and assessment of damages, all at the same term, although defendant had regularly filed an answer to the petition, and the cause was regularly at issue upon answer; because said judgment was rendered for a greater amount than the damages claimed by plaintiffs; because said judgment was rendered upon a trial when defendant was not represented by counsel or otherwise, the...