Hurck v. St. Louis Exposition & Music Hall Ass'n

• Decision Date: 17 January 1888
• Citation: 28 Mo.App. 629
• Parties: WILLIAM F. HURCK, Appellant, v. ST. LOUIS EXPOSITION AND MUSIC HALL ASSOCIATION, Respondent.
• Court: Missouri Court of Appeals

28 Mo.App. 629

WILLIAM F. HURCK, Appellant, v. ST. LOUIS EXPOSITION AND MUSIC HALL ASSOCIATION, Respondent.

Court of Appeals of Missouri, St. Louis.

January 17, 1888

APPEAL from the St. Louis Circuit Court, HON. DANIEL DILLON, Judge.

Affirmed.

E. A B. GARESCHÉ, for the appellant: It has been held that it is no abuse of discretion to proceed with the trial of a case when an attorney is engaged in another court. Guffin v. Vail, 56 Mo. 311. It will be observed that in both this case and that of Jacob v. McLean, cited by Judge Adams in his opinion, the defendant was not in court, and no reason was given for his absence. Had he been present he might, as Judge Napton remarked, have employed other counsel to represent him. Notwithstanding these decisions, adverse to the appellant in these particular cases, for reasons therein particularly emphasized, this court, as late as Hanel v. Freund (17 Mo.App. 623) expressly refers to and upholds its right to review the action of the trial court in the matter of its discretion. So, in Blanchard v. Hunt (18 Mo.App. 289), Judge Ellison says that there can be no doubt but that an appellate court will not permit an abuse of discretion in a trial court. Hurck was not absent through any neglect of his. He had taken every precaution to be advised in time of the setting of the case.

FORD & PAYNE, for the respondent.

OPINION

ROMBAUER J.

This appeal is prosecuted by the plaintiff from a judgment overruling his motion to reinstate the cause. The action was originally brought before a justice of the peace, where the plaintiff recovered judgment for nine dollars and costs. From this judgment the plaintiff appealed, and on retrial in the circuit court recovered judgment for thirty dollars and costs. This amount being less than he claimed he moved to vacate the judgment, and it was vacated on his motion, as we must assume, upon a sufficient showing.

The case was then set for retrial at a subsequent term. When it was called for trial at this last date neither the plaintiff nor his attorney was present, and the plaintiff's appeal was dismissed on defendant's motion.

The plaintiff's counsel appearing in court on the same day moved to have this dismissal set aside, and made and filed two affidavits in support of his motion. It appeared by these affidavits that his client was necessarily absent from the city and was an indispensable witness in his own behalf. It also appeared that the affiant counsel was necessarily absent from the courtroom when the case was called. For the purpose of passing on the merits of this appeal we may furthermore concede that the facts shown by the affidavits lead to the conclusion that both the plaintiff and his counsel were unavoidably so absent, and that no negligence is imputable to either on account of such absence.

At the same time it appears...