Hoffman v. Loudon
| Decision Date | 02 June 1902 |
| Parties | CARL HOFFMAN, Respondent, v. HOPKINS LOUDON, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. W. B. Teasdale, Judge.
AFFIRMED.
Judgment affirmed.
J. Roy Smith and T. H. B. Turner for appellant.
(1) The judgment should have been set aside on defendant's motion, because defendant was taken by surprise by plaintiff's attorney, and an improper verdict rendered and finding by the court rendered in favor of the plaintiff and against the defendant's cause of action. R. S. 1899 sec. 800. (2) We understand, of course, that an application to set aside a default judgment is addressed to the discretion of the court, and that in order to justify the trial court in setting aside a judgment by default the defendant must show two things: first, that he has good reason for default on his part; and, second, that he has a meritorious defense. Defendant must establish both grounds in order to obtain relief from the consequences of his default. He must show, not only that he has a good defense, but that he has a good reason for the default, and that he himself was not negligent. Robyn v. Publishing Co., 127 Mo. 385 et seq; Bresnehan v. Price, 57 Mo. 422; Graham and Waterman on New Trials (2 Ed.), 47, 48, 55; Martin v. Turnbaugh, 153 Mo. 172; Wolff v. Railroad, 89 Cal. 337; Wager v. Shickle, 3 Paige 407; Horten v. Co., 27 P. 376; Reidy v. Scott, 53 Cal. 69; Waugh v. Suter, 3 Ill.App. 274; Adams v. Hickman, 43 Mo. 168; Tucker v. Ins. Co., 63 Mo. 588; Judah v. Hogan, 67 Mo. 252; Pearson v. Fishing Co., 99 Cal. 425; Graham v. Pickering, 7 Robt. (N. Y.) 147. (3) "Judgment will be reversed where manifestly against the law and evidence." Mauerman v. Railroad, 41 Mo.App. 348; Flanders v. Green, 50 Mo.App. 371.
Wollman, Solomon & Cooper for respondent.
(1) It not appearing anywhere that a bill of exceptions was filed, it follows that the paper purporting to be a bill of exceptions will be disregarded. State v. Rolley, 135 Mo. 677; Lafollette v. Thompson, 83 Mo. 199; Butler County v. Graddy, 152 Mo. 441; Storage & Warehouse Company v. Glasner, 150 Mo. 426. (2) The abstract of the record is insufficient. It neither meets the requirements of the statute nor the rule of this court. The most this court will do will be to examine the record proper. Sec. 813 (R. S.) 1899; Rule 15, K. C. Court of Appeals; Storage & Warehouse Co. v. Glasner, 150 Mo. 426; Butler County v. Graddy, 152 Mo. 441. We call the court's attention also to Hays v. Continental Casualty Co., and Hill v. Coombs, recently decided by this court, but not yet reported and also Goodson v. Bevan, 89 Mo.App. 162, as being decisive of our propositions 1 and 2. Wayman v. Jones, 58 Mo.App. 313; American Bank v. Klock, 58 Mo.App. 335; Burton v. Rutherford, 49 Mo. 255. (3) Defendant's application to have the judgment set aside was addressed to the discretion of the trial court, and this court will not interfere unless there has been a clear and palpable abuse of that discretion. 6 Enc. Pl. and Pr., 200; Kibben v. Eckelkamp, 30 Mo. 480; Carr v. School District, 42 Mo.App. 156; Jacob v. McLean, 24 Mo. 40; Florez v. Uhrig, 35 Mo. 517; Robyn v. Publishing Co., 127 Mo. 385; Welch Executrix v. Mastin, Kansas City Court of Appeals, not yet reported; 6 Ency. Pl. and Pr., 203, 203; Poirier v. Gravel, 88 Cal. 79; Swanstrom v. Mowin, 38 Minn. 359; Flannigan v. Dugan, 47 Minn. 250; Palmer v. Harris, 98 Ill. 507; Life Assn. v. Plummer, 86 Ill.App. 446. (4) The negligence of defendant's attorney was his own negligence. Tower v. Ellsworth, 112 Ga. 460; Biebinger v. Taylor, 64 Mo. 63; 6 Ency. Pl. and Pr., 168.
--The plaintiff's petition, in substance, alleged that he and his wife sold defendant two lots in Leavenworth City in the State of Kansas, which were subject to a mortgage lien to secure the payment of a promissory note for $ 7,500, payable to one Harvey, and that as a part of the purchase price of said lots the defendant, by the terms of the deed of conveyance to him, executed by him (plaintiff) and his wife, assumed and agreed to pay said note and accepted said conveyance and entered into the possession of said lots. It was therein further alleged that defendant made default in the payment of said note; that afterwards the said Harvey brought a suit against both plaintiff and defendant in a proper Kansas court to foreclose the said mortgage and to obtain a personal judgment on said note; that a decree of foreclosure and also a personal judgment was rendered in that suit against plaintiff for $ 7,871.25; that the said lots were sold, under the said decree, bringing six thousand dollars, which was applied in discharge of said judgment reducing the same to $ 2,616.88, which was paid by plaintiff. There was the further allegation that by reason of the premises the defendant was indebted to plaintiff, etc.
The answer was a general denial coupled with which was an allegation that there was another action pending in the circuit court of Jackson county, at Kansas City, in which the subject-matter and the parties plaintiff and defendant were the same. The plaintiff's reply was that the said action referred to in defendant's answer had been dismissed and was no longer pending.
A judgment by nil dicit was given, after which the defendant filed a motion to set the same aside, which being overruled he took an appeal here.
I. The day before the cause was called by us for hearing, the plaintiff filed a motion to dismiss the appeal for the reason that the defendant's abstract of the record did not disclose any record entry showing the filing of the bill of exceptions. Between the time of the filing of the motion and that of calling the cause for hearing, we had been unable to examine and pass upon such motion, and so it was submitted with the case.
During the argument by counsel here at the bar some allusion was made to the condition of the abstract of the record, when it was suggested by one of us that the defendant should file an additional abstract of the record, which was done some ten days later on. But the plaintiff strenuously objected to this.
Under our rule five, which was adopted before the enactment of section 813, Revised Statutes, 1899 (Acts 1891, p. 69), no suggestion of a diminution of the record could be entertained by us after joinder in error, except by consent of parties, and since the time the statute ceased to any longer require the formal assignment and joinder of errors, where causes have been brought up by the short method under section 813, ante, we have, after the filing of the briefs, refused to permit the appellant or plaintiff in error to file an additional abstract without the consent of the respondent or defendant in error. We have treated the filing of the briefs as being equivalent to the assignment and joinder of error under the old statute, and in that way applied the foregoing rule.
Ever since the ruling in Bank v. Davidson, 40 Mo.App. 421, we have constantly held that where the appellant or plaintiff in error fails, in his original abstract, to set forth such parts of the record as shows jurisdiction, a valid bill of exceptions, and so much of the record as is necessary to a full understanding of the questions presented for decision, he can not, after the respondent or defendant in error has suggested in his brief such failure, be permitted to cure the defect by a supplemental abstract without the consent of the respondent or defendant in error. Any other practice most obviously would lead to the most mischievous consequences and would be intolerable. The additional abstract filed by appellant, under the circumstances already referred to, should, we think, be disregarded.
II. But suppose we are wrong in our conclusion as just stated, and that the filing of the additional abstract cured the defect in the original, and that there is, therefore, a valid bill of exceptions, then we are confronted with the question whether or not the trial court erred in its action in overruling the defendant's motion to set aside the judgment. It is an established rule of practice in this State that in order to justify a trial court in setting aside a judgment by default, the defendant must show (1) that he has good reason for the default, and (2) that he has a meritorious defense. He must establish both of these grounds before he can be relieved from the consequences of his default. Robyn v. Chronicle, 127 Mo. 385 at 391, 30 S.W. 130; Pry v. Railroad, 73 Mo. 123. There is no distinction between the negligence of a party to an action and that of his attorney. Field v. Matson, 8 Mo 686; Ridgley v. Reindeer, 27 Mo. 442. The affidavit of the defendant's attorney, which was filed in support of his motion, was to the effect that ...
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