J. R. Watkins Co. v. Hubbard, 23261

Decision Date06 February 1961
Docket NumberNo. 23261,23261
Citation343 S.W.2d 189
PartiesJ. R. WATKINS COMPANY, a corporation, Appellant, v. Howard E. HUBBARD, Kenneth Mason, Josephine Mason, Joe Richards, and Stella White, Respondents.
CourtMissouri Court of Appeals

Harry L. Porter, Marceline, for appellant.

Erroll Joyce and Robert Devoy, Brookfield, Leman E. Atherton, Milan, for respondents.

CROSS, Judge.

Plaintiff corporation sues to recover an alleged account indebtedness from defendant Hubbard as principal debtor and other defendants as guarantors. Judgment was entered against defendants in default of pleading or appearance. Plaintiff appeals from the trial court's order sustaining defendants' motion to set aside the judgment.

Responding defendants have moved for dismissal of the appeal on grounds that the statement contained in plaintiff's brief is insufficient under Rule 83.05(e), V.A.M.R., and that the brief is not in compliance with Rule 83.05(e), in that the points and authorities set out are mere abstract statements of law, unrelated to any action or ruling of the trial court.

Plaintiff's brief is not in conformity with the cited rules. However, we do not feel that the nature of the violations warrants a dismissal of the appeal. The motion is denied.

A prior suit was filed by plaintiff on August 19, 1955, against the present defendants, on the same claim made in the present action. It was dismissed eight days later under the following circumstances shown in evidence. After defendant Hubbard was served with summons on August 23, 1955, he 'went over and talked to Mr. (J. P.) Morgan', who was attorney for the J. R. Watkins Company at that time. Hubbard told Mr. Morgan, 'We didn't feel that we owed them anything and explained the situation to him'. Mr. Morgan stated, 'Under the circumstances I don't want any part of it', and said, 'You'll hear no more of it from me and we will dismiss it'. The records of the Linn County Circuit Court show that dismissal of the first suit was entered on August 27, 1955, by J. P. Morgan, attorney for plaintiff, J. R. Watkins Company.

The present suit was filed on October 24, 1956, by Mr. H. K. West, as plaintiff's attorney. Summons was served personally upon responding defendants. For reasons to be later shown, they, filed no pleading and made no appearance until after the default judgment was taken against them almost three years later. The judgment was entered on October 5, 1959, in the sum of $1,455.70, the full amount of plaintiff's claim. Defendants learned that judgment had been taken against them when 'it came over the radio'.

On October 14, 1959, defendants filed their verified 'Motion to Set Aside the Default Judgment', praying for vacation of the judgment, leave to plead, and a trial on the merits. It was alleged in the motion:

'1. That they and each of them have a meritorious defense to Plaintiff's complaint and to the cause of action therein set forth and contained. That the Defendants and each of them are not now and were not at the time of the filing of Plaintiff's Petition indebted to the Plaintiff in any amount whatsoever. That Plaintiff's complaint was based upon merchandise delivered to Defendant Howard E. Hubbard for purposes of resale on commission. That the said Howard E. Hubbard did make full accounting for all merchandise received by him and did pay to the Plaintiff herein, the entire amount alleged to be due and owing and which said sum is the subject of Plaintiff's complaint.

'2. Defendants further state, that on or about the 26th day of November, 1956, after Plaintiff's Petition had been filed in the cause, and before, under the law, they were required to file answer thereto, Defendants Howard E. Hubbard, Kenneth Mason and Joe Richards went to the office of the Plaintiff's then attorney, Mr. H. K. West of Brookfield, Missouri, where the matter of the suit was fully discussed among them and at such time and place, Mr. West informed them that the Petition which he had filed in the casue would be dismissed and it would not be necessary essary for them to file answer thereto. That Defendants relied upon the counsel advices and declaration of Plaintiff's attorney, believed that the Petition filed would be dismissed, and for such reason, refrained from employing counsel to represent them in the defense of the suit.'

The trial court heard evidence on the motion, took the matter under advisement, and, on May 19, 1960, sustained the motion, set the default judgment aside, and ordered a trial on the merits.

As plaintiff's brief contains no points other than abstract statements, we must extract the intended assignments of error from the argument and summary, as read in connection with those statements. In the main, plaintiff contends: there is no statutory ground to justify the trial court's order setting aside the judgment; the order was not justified for the reason defendants produced no evidence of a valid defense, of excusable neglect, or that they were misled or prejudiced by the statements of plaintiff's attorney.

It is apparent, as plaintiff suggests, that the order was not made on initiative of the trial court within 30 days after judgment under authority of Section 510.370, V.A.M.S. The order is not, in our opinion, the grant of a new trial requiring a specification of grounds therefor as plaintiff contends. We do not regard the motion as a statutory motion for a new trial. We view it as a direct attack on the judgment, and consider the proceedings before us as an independent, separate suit, instituted by motion instead of petition. As the parties do not classify the action, we look to the originating pleading to determine its nature.

The motion contains no allegation of any irregularities patent on the face of the record. It follows that defendants have not invoked the common-law remedy recognized and limited by Section 511.250 and Section 511.260, V.A.M.S. Nor can the motion be considered as a petition for review under Section 511.200, V.A.M.S. That statute has no application in this case because defendants were personally served with summons.

The motion is not in the nature of a writ of error coram nobis, as presently interpreted in this state, the function of which is to bring to the attention of the court some unknown error of fact, dehors the record, not going to the merits of the cause, but relating to the jurisdiction of the court to attain a valid result. Example: In cases where a party is a minor, or insane, or deceased, at the time a judgment is rendered. Edson v. Fahy, Mo.Sup., 330 S.W.2d 854. No facts of the foregoing nature are relied upon or alleged.

Defendants squarely ground their motion on allegations that the judgment was procured by fraudulent, unconscionable acts on the part of plaintiff, extraneous to the merits of the case. Courts uniformly recognize those acts as grounds for equitable relief from judgments. It is a familiar rule that equity will relieve against a judgment for extrinsic fraud, accident and mistake. Black on Judgments, Section 368; United States v. Throckmorton, 98 U.S. 61, 25 L.Ed. 93; Fadler et al. v. Gabbert et al., 333 Mo. 851, 63 S.W.2d 121; Hockenberry v. Cooper County State Bank, 338 Mo. 31, 88 S.W.2d 1031.

It is also thoroughly settled law that a judgment, obtained in violation of any agreement or promise by which an appearance to make a meritorious defense is prevented, will not be allowed to stand. Freeman on Judgments, Vol. 3, Section 1243; Fadler v. Gabbert, supra; Sherer v. Akers, 74 Mo.App. 217.

Instances of equitable relief under facts similar to those in this case are seen in numerous Missouri cases. In Ward v. Quinlivin, 57 Mo. 425, plaintiff and his attorneys told defendant that plaintiff had no cause of action and would dismiss the suit, and that defendant and his attorneys might go home and give the case no further attention. Defendant acted on the assurance and plaintiff took default judgment. In Bresnehan v. Price, 57 Mo. 422, defendant appeared to oppose plaintiff's suit on account. The parties agreed to arbitrate and continue the case to a certain day. Defendant made no appearance. Plaintiff appeared and took judgment. In Sanderson et al. v. Voelcker et al., 51 Mo.App. 328, plaintiff agreed with defendant for a continuance. Plaintiff ignored the agreement and procured a judgment in plaintiff's absence. In Sherer v. Akers, supra, plaintiff had a conversation with defendant and led him to believe the suit was to foreclose a mortgage so that the note securing it could be collected from other defendants--principal debtors. Defendant made no appearance. Plaintiff took default judgment. In Jones et al. v. Arnold et al., 359 Mo. 161, 221 S.W.2d 187, a judgment was set aside for fraud committed by plaintiff in concealing the pendency of the suit from minor defendants. In Fadler v. Gabbert, supra, a leading case frequently cited and quoted, two judgments were set aside, when procured by fraud in concealing pendency of the suits. In Lee v. Harmon, 84 Mo.App. 157, the parties compromised, and plaintiff agreed to dismiss the suit and pay all costs. Defendant, in reliance, made no appearance and plaintiff took judgment. In Fisher v. Fisher, 114 Mo.App. 627, 90 S.W. 413, plaintiff violated his agreement that defendant need not answer and took judgment. In Cross v. Gould, 131 Mo.App. 585, 110 S.W. 672, allegations that plaintiff's attorney violated a promise to notify defendant's attorney of the trial date were held to state grounds for relief from the judgment.

Mindful of the foregoing principles of substantive law, and still probing the nature of the matter before us, we reach this question: Shall we, under procedural law now in force, consider the motion as a petition in equity, and view the proceedings as a separate suit in equity?

We think this question should be viewed historically before it is decided. Missouri courts have, in two separate periods of time, held directly conflicting views on the...

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