Judah v. Hogan

• Decision Date: 30 April 1878
• Citation: 67 Mo. 252
• Parties: JUDAH v. HOGAN, Appellant.
• Court: Missouri Supreme Court

67 Mo. 252

JUDAH

v.HOGAN, Appellant.

Supreme Court of Missouri.

April Term, 1878.

Appeal from Randolph Court of Common Pleas.--HON. G. H. BURCKHARTT, Judge.

Rouse & Hollis for appellants.

In all the cases in which this court has held the negligence of the attorney to be the neghgence of the client, it was after judgment had been entered and the damages assessed. Field v. Matson, 8 Mo. 686; Kerby v. Chadwell, 10 Mo. 393; Stout v. Lewis, 11 Mo. 438; Ridgley v. Steamboat Reindeer, 27 Mo. 442; Gehrke v. Jod, 59 Mo. 522.

McCanne & Rutherford for respondent.

The failure of an attorney to plead in a cause in proper time is negligence, and his negligence, if not satisfactorily excused, is the negligence of the client, and no excuse for failure. Gehrke v. Jod, 59 Mo. 522.

NAPTON, J.

The cases, in which this court has interfered with the discretion of the circuit court in relieving, or refusing to relieve a party against the negligence of his attorney, are very rare. Indeed, it may be confidently said that the rule is recognized in almost every volume of our Reports, that the negligence of the attorney is the negligence of the client. There are cases, however, in which this court has interposed, not to relieve against the consequences of negligence, but against the result of accidents which ordinary diligence would not be likely to prevent. The case of Stout v. Lewis, 11 Mo. 438, is a case of this sort. In that case a verdict and judgment had been rendered, and though the court, presiding at the trial, refused to relieve the defendant who, along with his attorney, was accidently absent, yet this court interposed. Judge Scott's remarks in that case are, in my opinion, a satisfactory explanation of the general rule as well as of the exceptions to it.

In the present case the defendant, by his counsel, appeared at the return term and obtained leave to file an answer in vacation, within sixty days. The answer was not filed. At the beginning of the next term, the defendant asked leave to file his answer, accompanying his motion with an affidavit, that his counsel, at the former term, had been instructed by him in all the details of his defense, and that he supposed the answer had been filed in time, but his attorney left the State on a temporary visit, as he understood, but, on examination, he ascertained that the answer had not been filed, and he then employed other attorneys who filed the motion for leave--his former attorney having never returned. This motion was made before any judgment by default, and was accompanied with the answer proposed to be filed. The court overruled the motion, and then continued the case till next term. At that term, the third after the service, final judgment was rendered.

As was observed by Judge Scott in Stout v. Lewis, “justice ought to be administered in a manner satisfactory to suitors. An indiscriminate interference of this court with matters of pure discretion in the courts below would in the end be productive of more injustice than refusal to interfere in any case, but cases may arise in which this court will interfere. This is never done, however, without great reluctance, as it is obvious that, in matters of this kind the court possessing original jurisdiction enjoys advantages for...