Hulbert v. Treadway

• Decision Date: 12 February 1901
• Citation: 159 Mo. 665,60 S.W. 1035
• Parties: HULBERT v. TREADWAY et al.
• Court: Missouri Supreme Court

60 S.W. 1035

159 Mo. 665

HULBERT v. TREADWAY et al.

Supreme Court of Missouri, Division No. 2.

February 12, 1901.

JUDGMENT — VACATION — REVIEW — MOTION — AFFIDAVIT — DISCRETION.

1. Circuit courts are of general jurisdiction, and have control of their judgments, and, in the absence of statutory inhibition, may, in their discretion, set aside a default at any time during the term at which it was rendered.

2. Unless the discretion of the circuit court in setting aside a default is erroneously exercised, the supreme court will not interfere with its action.

3. In support of a motion to vacate a default, defendants' affidavit tended to show that they had a good defense; that plaintiff had admitted to them that they did not owe him anything, and had agreed to dismiss the suit, and thereafter assured them that he had done so; and that, relying on his representations, they were not present when the case was heard and judgment rendered. Held, that such facts fully justified setting aside the judgment.

Appeal from St. Louis circuit court; L. B. Valliant, Judge.

Action by A. G. Hulbert against Dwight Treadway and others. A motion to set aside a default judgment for plaintiff was sustained, and he appeals. Affirmed.

Plaintiff sued defendants in the circuit court of the city of St. Louis for the sum of $3,666.66 principal and $427.16 interest, being the balance alleged to be due by them to him on a contract. Defendants answered the petition by way of general denial. On January 14, 1898, the case was called for trial, but defendants were not present. Plaintiff introduced the contract in evidence, and testified himself to the balance due thereon. The court rendered judgment for plaintiff in the sum of $5,076.32. Thereafter and during the same term, to wit, January 14, 1898, defendants filed their motion to set aside said judgment upon the following grounds: "First, defendants have a good and meritorious defense to plaintiff's complaint; second, the judgment has been obtained by false, fraudulent, and deceptive motives; third, defendants' attorneys did not notify them of the setting of the case; fourth, plaintiff had agreed to dismiss said cause, and had assured defendants he had done so." Defendants W. C. and J. B. Dines filed their affidavit in support of said motion. On April 29, 1898, the motion was sustained and the judgment set aside. Plaintiff duly excepted, and appeals.

Boogher & Taylor, for appellant. John E. Bowcock, for respondents.

BURGESS, J. ...