Lewis v. Hooser

• Decision Date: 07 February 1921
• Citation: Lewis v. Hooser, 227 S.W. 618, 206 Mo. App. 618 (Kan. App. 1921)
• Parties: HUGH M. LEWIS, Respondent, v. H. B. VAN HOOSER, Appellant
• Court: Kansas Court of Appeals

227 S.W. 618

206 Mo.App. 618

HUGH M. LEWIS, Respondent, v. H. B. VAN HOOSER, Appellant

Court of Appeals of Missouri, Kansas City

February 7, 1921

Appeal from the Circuit Court of Jackson County.--Hon. Thomas B Buckner, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Kirshner & House for respondent.

Marley & Reed for appellant.

OPINION

TRIMBLE, P. J.

On the 12th day of June, 1919, (May term of that year) judgment by default was rendered against defendant for $ 1000 as and for liquidated damages for failure to perform his part of a contract for the exchange of property.At the same term, the defendant learned of it and, within four days after judgment filed a motion for new trial supported by affidavits, showing that he had a good defense on the merits and that, without his knowledge, his attorney had abandoned the case and had taken the papers to another attorney who had refused to act in his stead, and that defendant's attorney had not told defendant of his abandonment of the case though he had seen him every day for about a week immediately preceeding date of the rendition of the judgment.The affidavits show that the attorney's conduct was because of some real or fancied grievance he claimed to have; and that the defendant was not guilty of negligence."It has been frequently held that where an attorney abandons the prosecution or defense of his client's cause without notice to such client, a reasonably sufficient length of time to enable him to secure other counsel should be given before judgment is taken against him, and, if judgment is rendered without giving him such time, it will be set aside upon a showing of such facts.[Evans v. Terrell(Tex. Civ. App.),95 S.W. 684;Hall v. McConey(Mo. App.), 132 S.W. 618, 620.]"

There were no counter affidavits filed in opposition; and the motion for new trial contained specifications of error aside from the one in reference to the setting aside of the judgment because of the reason above stated.

Among these is that there was no evidence introduced tending to show that plaintiff had performed or ever offered to perform the conditions and requirements to be performed by him.And the record discloses that such is the fact.The contract is one for the exchange of property and each party was to do certain things necessary to be done before an exchange could be enforced.Where this is the casethe plaintiff must establish the fact that he has performed or...