Johnson v. Gernert Bros. Lumber Co.

• Decision Date: 16 October 1934
• Citation: 255 Ky. 734,75 S.W.2d 357
• Parties: JOHNSON v. GERNERT BROS. LUMBER CO.
• Court: Kentucky Court of Appeals

75 S.W.2d 357

255 Ky. 734

JOHNSON v. GERNERT BROS. LUMBER CO.

Court of Appeals of Kentucky

October 16, 1934

Appeal from Circuit Court, Jefferson County, Chancery Branch, First Division.

Petition by Della S. Johnson against the Gernert Bros. Lumber Company to vacate a default judgment. From a judgment denying relief petitioner appeals.

Reversed with directions.

W. G Dearing, of Louisville, E. C. O'Rear and Allen Prewitt both of Frankfort, for appellant.

J. S Luscher, of Louisville, for appellee.

STANLEY Commissioner.

The petition in equity of the appellant, Mrs. Della S. Johnson, against the appellee, Gernert Bros. Lumber Company, seeks the vacation of a default judgment, an injunction restraining the selling of her property under execution, and a new trial. Sections 340, 344, 518, Civil Code of Practice. She appeals from the judgment rendered for the defendant.

A different and stricter rule applies to an action of this kind than to an application to set aside a default judgment rendered at the same term as is pointed out in Cleveland v. Couch, 231 Ky. 332, 21 S.W.2d 468. The ground upon which the case rests is something of a blend of the following four grounds provided by the Code:

"Misconduct of jury, of the prevailing party, or of his attorney." Section 340, subd. 2, Civil Code of Practice.

"For fraud practiced by the successful party in obtaining the judgment." Section 518, subd. 4, Civil Code of Practice.

"Accident or surprise which ordinary prudence could not have guarded against." Section 340, subd. 3, Civil Code of Practice.

"For unavoidable casualty or misfortune, preventing the party from appearing or defending." Section 518, subd. 7, Civil Code of Practice.

The appellant's pleading, proof, and argument are that she and her counsel were misled by her adversary's attorney. This is a ground, if established, always recognized as sufficient to entitle a party to a new trial. In deducing it from the statutory delimitation of the right to reopen a case, the word "fraud" is not confined to its vicious import of a wicked motive or deliberate deceit, or an affirmative evil act purposefully conceived, but is deemed sufficiently expansive to embrace merely leading astray, throwing off guard, or lulling to security and inaction, be the intention or motive good or bad, with a resultant advantage to the one and an apparent injustice to the other. So the law is declared to be that if before a judgment was rendered a party plaintiff or his attorney said or did anything that put his adversary off guard, or prevented him from defending the action, and he shows that he had a prima facie valid defense, he is entitled to relief from the judgment. This is on the idea that such conduct operated as a fraud upon his rights. There has been a firm adhesion to this precept. Sibley v. Armstrong, 1 Ky. Opin. 619; Hayden v. Moore, 67 Ky. (4 Bush) 107; McCall v. Hitchcock, 72 Ky. (9 Bush) 66; Martin v. Spurlock, 68 S.W. 396, 24 Ky. Law Rep. 212; Winkler v. Peters, 142 Ky. 83, 133 S.W. 1144; Kingsley v. Daniels, 157 Ky. 194, 162 S.W. 813; Dark Tobacco Growers' Cooperative Association v. Bevins, 216 Ky. 121, 287 S.W. 355.

There is a corollary. The deduction of the chancellor in this case from Douthitt v. Guardian Life Insurance Company, 235 Ky. 328, 31 S.W.2d 377, is thus epigrammatically expressed: "It is the duty of a lawyer to watch the case and the litigant to watch the lawyer." Almost but not altogether so. The thought is suggested by appellant's counsel that while the client may be under a duty to do a little "back-seat driving," he is not required to seize the wheel when the provocation is no more than is shown here. But it is the duty of both litigant and attorney to exercise reasonable and due foresight, prudence, and diligence to prepare and to keep up with the case and to avoid surprises and misfortunes. If that is not done, that is to say, if either is negligent, and an adverse judgment results, no relief can be granted. Negligence and surprise do not go together here. If the cause which prevented the appearance of a party or his counsel was such that ordinary care could not have guarded against it, then a new trial should be granted--the showing of a prima facie valid defense being made. McCall v. Hitchcock, supra; Payton v. McQuown, Adm'r, 97 Ky. 757, 31 S.W. 874, 17 Ky. Law Rep. 518, 31 L. R. A. 33, 53 Am. St. Rep. 437; Kirk v. Gover, 96 S.W. 824, 29 Ky. Law Rep. 1046; Louisville & N. R. Co. v. Paynter's Adm'r, 125 Ky. 520, 101 S.W. 935, 31 Ky. Law Rep. 163; Noe v. Davis, 171 Ky. 482, 188 S.W. 457; Kohlman v. Moore, 175 Ky. 710, 194 S.W. 933; Elkhorn Coal Corporation v. Cuzzort, 215 Ky. 254, 284 S.W. 1005; Commonwealth v. Fidelity & Columbia Trust Company, 185 Ky. 300, 215 S.W. 42; McGuire v. Mishawaka Woolen Mills, 218 Ky. 530, 291 S.W. 747; McCommas v. McCawley, 228 Ky. 263, 14 S.W.2d 1057; Cleveland v. Couch, supra; Mussman v. Pepples, 243 Ky. 674, 49 S.W.2d 592.

The question in this case is under which principle it falls, whether the evidence proves (1) that the plaintiff's attorney agreed to notify the defendant's attorney before he would take further proceedings against his client and thereby misled him, and, if so, whether ordinary diligence on the latter's part would have avoided the oversight of that agreement; or (2) without the agreement whether either the defendant or her attorney was simply negligent.

Gernert Bros. Lumber Company sued Mrs. Nell M. Petty, her husband, Tilford Petty, Robt. S. Johnson, and his wife, Mrs. Della S. Johnson, on a note for $1,873. Mrs. Johnson promptly employed J. H. Holladay as her attorney and he seasonably filed a demurrer and later an answer interposing the defense of coverture and suretyship. Issue was joined. No defense being made by the other parties, judgment was rendered against them. The case against Mrs. Johnson was set for trial October 31, 1932, and on that day was reassigned to December 19th; then to February 13, 1933; then, according to the record, to March 29th. On that date the order recited that the case being called for trial and the defendant, neither in person nor by counsel appearing, judgment was rendered against Mrs. Johnson. On June 5th following, an execution was levied on her property, and she then promptly filed this suit to vacate that judgment and for the relief above stated.

It would seem well, in view of the conflicting evidence upon which the case must be decided, to state it in some detail. On October 31st, the day the case was first set for trial, Mrs. Johnson was present with her witnesses. Geo. G. Buckingham, attorney for the plaintiff, stated he believed he could make the money out of the property of the Pettys, and asked a continuance. Both lawyers agree on this point. But Holladay goes further and says he was insisting on disposition of the case because of the presence of a witness from Bowling Green (Petty) and then that Mr. Buckingham told him, "I don't think we will ever have to try the case," and promised to notify him should he desire a trial. This was communicated to Mrs. Johnson with the assurance that he, Holladay, would in turn notify her. Petty, who heard Holladay's end of the telephone conversation, corroborates him. The Johnsons confirm him as to the information passed on to them. Buckingham does not specifically deny any of this. Some time between that date and December 19th, to which the case was assigned, Mrs. Johnson made inquiry of her attorney concerning the case and was advised not to worry about it as he would let her know when it would come up if ever. Holladay testifies that in the meantime he met up with Buckingham and reminded him that the case was set for trial December 19th and inquired if he would be ready, and Buckingham again wanted a continuance for, said he, "Like I told you, I don't think we will ever have to try it." Buckingham does not deny this, but says that on December 19th Holladay and his witnesses from Bowling Green were in court and a continuance was agreed upon, and the case was reassigned to February 13th because at that time "We still hadn't settled this property or sold the property." Holladay and Mrs. Johnson say she was never in court and that she knew nothing about any trial being set for that date, since she was obeying the admonition of her lawyer and paying no more attention to the case until he should be heard from.

The foregoing is of value only as it may throw light upon what was done on February 13th, for the crucial evidence relates to that. Holladay's testimony is that some time before that day he again discussed the case with...