Linneman v. Whitley

• Decision Date: 04 April 1966
• Docket Number: No. 24332,24332
• Citation: 402 S.W.2d 76
• Parties: Wernell LINNEMAN and Ruth H. Linneman, Plaintiffs-Respondents, v. Melvin WHITLEY and Juanita Whitley, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 76

402 S.W.2d 76

Wernell LINNEMAN and Ruth H. Linneman, Plaintiffs-Respondents, v. Melvin WHITLEY and Juanita Whitley, Defendants-Appellants.

No. 24332.

Kansas City Court of Appeals, Missouri.

April 4, 1966.

Wm. B. Nivert, Jr., Glasgow, Raymond C. Lewis, Jr., Columbia, for appellant.

James J. Wheeler, Keytesville, for respondent.

BROADDUS, Special Commissioner.

This is an appeal from the order of the trial court refusing to set aside a default judgment.

Respondents, as plaintiffs, filed a petition in the Circuit Court of Chariton County against appellants as defendants. The petition was in two counts. The first count alleged that defendants were the owners of a tract of land in Chariton County containing 120 acres; that defendants had employed the United Farm Agency to act as their agent in selling said premises, and had authorized said agency or its representatives to make a binding contract in the name of defendants; that on July 25, 1962, the defendants, through their agent, offered the premises for sale to plaintiffs for the sum of $26,500, and plaintiffs agreed to purchase the same for this sum; that the parties entered into a written agreement of sale, and, upon the signing of said contract, plaintiffs paid to the United Farm Agency, as agent for defendants, the sum of $2,650, which was to be applied to the purchase price; that plaintiffs have always been ready, willing and able to fulfill said agreement; that they have tendered the balance of the purchase price to defendants but that defendants have refused to execute and deliver a proper warranty deed conveying said premises to plaintiffs. The prayer of this count was for specific performance.

For the second count of their petition plaintiffs adopted the allegations contained in Count I and allege that by reason of the failure of defendants to perform their part of the agreement plaintiffs were entitled to recover the sum of $2,650 from defendants.

Appellants filed an answer which was a general denial. Thereafter, on appellants application for a change of venue the cause was transferred to the Circuit Court of Linn County.

The record shows that on May 1, 1964, the trial court entered an order setting the case for trial on September 14, 1964. It also shows that by letter dated May 22, 1964, the trial court notified the attorneys for all parties of the date the cause was set for trial.

The record further shows that on September 14, 1964, the plaintiffs appeared and answered ready for trial but that the defendants defaulted. Evidence was offered by the plaintiffs and the court found the issues for defendants on the first count (specific performance) but entered a judgment against both defendants on the second count in the sum of $2,650.

The evidence offered at the default hearing consisted of testimony of both of the plaintiffs and of Wallace Enyeart, a representative of the United Farm Agency. According to this testimony, the appellants employed Mr. Enyeart during June 1962, by written agreement to sell the farm that is the subject of this lawsuit, and that in accordance with his employment agreement Mr. Enyeart obtained the respondents as buyers for said farm for the sum of $26,500. Thereafter a written contract for the sale of the real estate was entered into between the respondents and the appellant Melvin Whitley. At the time this contract was executed respondents paid Mr. Enyeart the sum of $2,650. At the time of the hearing the defendants-appellants were still in possession of the farm. And the deposit of $2,650 had not been returned to plaintiffs-respondents.

On September 21, 1964, the defendants filed a motion to set aside the default judgment. This verified motion asked for vacation of the default judgment for the reason that neither the defendants nor their attorney had any notice of the trial setting. On April 12, 1965, the trial court heard and overruled the motion, and on April 21, 1965, defendants filed their notice of appeal.

On August 9, 1965, appellants' present counsel were employed and they discovered that the time for filing a transcript had expired and many of the facts concerning appellants' prior attorney were not of record. Appellants' present counsel immediately filed a motion in this court asking permission to file the transcript and to allow the filing of affidavits. The motion alleged, among other things, that appellants had employed their former attorney believing him to be a person of professional ability and integrity and without any reason to believe that he would not properly represent them; that they had never been notified that their case was to be heard on September 14, 1964; that their...