Matthews v. Cook

• Decision Date: 31 October 1864
• Citation: 35 Mo. 286
• Parties: NEWTON MATTHEWS, Defendant in Error, v. ALLEN COOK et al., Plaintiffs in Error.
• Court: Missouri Supreme Court

35 Mo. 286

NEWTON MATTHEWS, Defendant in Error,

v.ALLEN COOK et al., Plaintiffs in Error.

Supreme Court of Missouri.

October Term, 1864.

Error to Jefferson Circuit Court.

This was an action by Newton Matthews against Allen Cook and Chapel Foster, to set aside a deed made by said Matthews to Allen Cook, for 160.75 acres of land situate in Jefferson county, on the ground that he was intoxicated when it was made; that the consideration was, that Cook was to support him for life, and that he had failed to comply with the terms of the conveyance; also, for $300 in money, and the value of certain personal property delivered by him to Cook; and, also, to vacate a deed from Cook to said Foster, for the same land; a default was entered against defendant at the June term, 1863, in consequence of Foster failing to get leave to answer in vacation in accordance with Cook's understanding of their arrangement; that Cook resides in Illinois and had arranged for him to do so, but that Foster had misunderstood the arrangement. At the December term following, the court called up the case on the 12th day of December, although it was set for trial on the docket for the 14th of December, and, against the objection of defendant's counsel, proceeded in the cause, and made a decree for plaintiff, setting aside his deed to Cook and vesting the title to the land in plaintiff, without any evidence to sustain the allegations in his petition, the plaintiff having dismissed his claim on the account, and for damages.

The court adjourned on the 12th December, to the first Monday of February, 1864, at which term Cook filed his motion to set aside the decree and grant a new trial, and give him leave to file answer instanter; and filed the affidavit of himself and Z. Pritchett, showing he had a meritorious defence, and that he had been prevented from attending the December term, 1863, at the first of the term, in consequence of sickness of his family; but the court refused to grant a new trial, and the defendants duly excepted and bring the case here by writ of error.

Abner Green and Jos. J. Williams, for plaintiffs in error.

I. The court erred in calling up and rendering a decree in the case on the 12th day of December, when the case was set for trial on the 14th day of December. Defendants were thereby taken by surprise and deprived of the opportunity of defending the action. (Price v. Ford, 7 Mon. 399.)

II. It was erroneous to decree in favor of plaintiff, without any evidence to support the allegations of the petition.

John S. Thomas, for defendant in error.

I. Although the case was set for trial on Monday, the 8th day of the court, still there could be no trial until the judgment by default was set aside; and there being no motion for that purpose on Saturday, the 6th day of the term, it was reasonable to suppose there would be none. The plaintiffs in error (defendants below) had no right to expect that a motion on their part to set aside the default would be entertained, if delayed until the day set for the trial. The court adjourned on Saturday, and there being no motion to set aside the default, the final decree was properly entered up. The defendant in error (plaintiff below) having dismissed his suit as to the money and personal property sued for, nothing remained for adjudication except the deed, which plaintiff below alleged Cook had obtained from him by fraud. No evidence was necessary; plaintiff below had nothing to do but take a final decree. (Lombard v. Clark, 33 Mo. 308.) The default might have been set aside for good cause shown any time before final judgment was rendered, but no motion was made for that purpose. (R. C. 1855, p. 1278, § 5; 9 Ind. 357.)

II. The plaintiffs in error (defendants below) showed no good cause why the judgment by...