Munroe v. Dougherty

• Decision Date: 30 December 1916
• Parties: ROBERT B. MUNROE and J. L. HORNSBY, Administrators, Respondents, v. JAMES P. DOUGHERTY et al, Appellants
• Court: Missouri Court of Appeals

190 S.W. 1022

196 Mo.App. 124

ROBERT B. MUNROE and J. L. HORNSBY, Administrators, Respondents, v. JAMES P. DOUGHERTY et al, Appellants

Court of Appeals of Missouri, St. Louis

December 30, 1916

Submitted on Briefs November 16, 1916

Appeal from St. Louis City Circuit Court--Hon. Eugene McQuillin Judge.

AFFIRMED.

Judgment affirmed.

W. G Carpenter for appellants.

(1) Mere forgetfulness of the party or his attorney will not excuse him. But misunderstanding or mistake undoubtedly will. It is a case of an honest mistake of fact. Parks v Coyne, 156 Mo.App. 395; Barto v. Electric Co., 119 Iowa 179; Davis v. Carp, 139 Mo.App. 650; Realty Co. v. Timmerberg, 178 Mo.App. 655; Breed v. Hobard, 187 Mo. 140. (2) Appellate courts favor a trial on the merits of the case and are more inclined to interfere with the discretion of the court where this is refused. Realty Co. v. Timmerberg, 178 Mo.App. 659. (3) Each case must be determined from the circumstances surrounding it and cannot be governed by settled rules of law. Parks v. Coyne, 156 Mo.App. 391; Perry v. Stone Co., 173 Mo.App. 418.

Adrian Steel for respondents.

(1) The judgment rendered by the circuit court in the case at bar is not a judgment of nil dicit or by default, but is a judgment rendered upon a regular setting of the case upon a trial at which plaintiff appeared but defendants failed to appear, and consequently no interlocutory judgment against defendants could be or was rendered. 23 Cyc. 734, n. 48; 23 Cyc. 743, n. 14. (2) If this were a judgment by default, as claimed by appellant, a motion to set aside the same after final judgment is not the proper procedure. Sec. 2101, R. S. 1909; Matthews v. Cook, 35 Mo. 286; Burnes v. Burnes, 61 Mo.App. 612; Billingham v. Miller, 115 Mo.App. 154. (3) The appellants are not entitled to relief on the ground of mistake in the employment of an attorney because they have not shown any diligence in looking after their interests. Colter v. Luke, 129 Mo.App. 707; Hoffman v. Loudon, 96 Mo.App. 184; 23 Cyc, 934; Parks v. Coyne, 156 Mo.App. 391 (and cases cited); Squiers v. Bird, 22 Mo. 470; Nordmauser v. Hitchcock, 40 Mo. 178.

THOMPSON, J. Reynolds, P. J., and Allen, J., concur.

OPINION

THOMPSON, J.

This was an action on a promissory note brought by O. M. Munroe against the defendants. The plaintiff had judgment in the circuit court, and upon motion to set aside said judgment being overruled, defendants appealed.

The note sued on is in words and figures as follows:

"$ 16 (Red)

$ 385 "Fenton, Mo. Sept. 22, 1904.

$ 401 (Red)

"Six months after date I promise to pay to O. M. Munroe of Jefferson County Bank of De Soto, Mo., or order, three hundred eighty-five dollars, for value received, with interest from date at the rate of eight per centum per annum until paid, and I agree to pay same at Jefferson County Bank of De Soto, Mo.

"Principal: JAMES P. DOUGHERTY,

"Securities: C. DOUGHERTY,

"E. J. DOUGHERTY."

This suit was instituted on the above promissory note before a justice's court in St. Louis, Missouri, and judgment was rendered in said court in favor of the plaintiff and against all of the defendants, on October 6, 1913, at which time all of the defendants appeared in person and by their attorney. Thereafter, on the 15th day of October, 1913, all of the defendants took an appeal to the circuit court of St. Louis, having filed proper affidavit and appeal bond, and thereafter, on the 29th day of November, the defendants paid the docket fee of the circuit court of St. Louis, and duly filed therein a transcript of all the proceedings before the justice's court, and the said cause was duly assigned to division 6 of the said circuit court. Thereafter, on April 20, 1914, the case was called for trial in division 6 of the circuit court of St. Louis. The plaintiff was present and ready for trial, but the defendants did not appear, although called; whereupon plaintiff, waiving a jury, submitted his case to the court, introduced his evidence and proofs, and the court having heard and duly considered the same, found in favor of the plaintiff and against the defendants, and rendered a judgment against the defendants in the sum of $ 531.30.

Thereafter, on the 21st day of May, 1914, and at the same term of court at which the above-named judgment was entered--that is, the April term, 1914, the separate motion of James P. Dougherty was filed to set aside said judgment, and on the same day the joint motion of Cornelius and E. J. Dougherty was likewise filed to set aside the said judgment. Both of these motions were passed to the June term, 1914, and on June 5th both of said motions were overruled. The defendants have perfected their appeal to this court, and since that time the original plaintiff, O. M. Munroe, died, and this action has been revived by consent of the parties in the name of Robert B. Munroe and J. L. Hornsby, his administrators. The said motion of the defendant, James P. Dougherty, to set aside the judgment was as follows:

"Comes now James P. Dougherty and for his separate motion to set aside a default judgment heretofore granted in this case on April 20, 1914, respectfully shows to the court that he had no notice or knowledge of the setting of this case on the said April 20, 1914, or any other such time.

"That he employed or believed he employed W. G. Carpenter as his attorney to look after and take charge of the said case, for him to appear therein and act as attorney, and to represent him in said cause, but the said W. G. Carpenter did not so understand that he was so employed, hence failed to look after the matter and the said cause was not properly cared for on his part.

"That the said James P. Dougherty so filing this motion appealed from the judgment of the justice of the peace against him as rendered on the sixth day of October, 1913, for four hundred and forty-two dollars and twenty cents because he believed he had a just and meritorious defense to said cause of action, in that he has records of payments made on the said note which go to reduce the amount from the amount of the judgment so rendered against him and your petitioner herein respectfully represents to the court that the judgment as rendered herein against him for five hundred and thirty-one dollars and thirty cents ($ 531.30), being eighty-nine dollars and ten cents ($ 89.10) greater than the judgment rendered against him in the justice's court, has deprived him of still further and additional credits which should be applied upon the said note as herein filed; that your petitioner has book records of the payments which should be so applied on the said note and none of which are herein credited; all of which are good and valid matters of defense of which petitioner should not be deprived; and your petitioner further respectfully shows that the judgment as rendered by the court upon his failure to appear, his course of action should have been to dismiss the appeal or affirm the judgment of the justice's court, that this court has no right of jurisdiction to hear anew. This course of action to make another or different finding from the justice's court on default of its appellate worth.

"Petitioner prays that the said default judgment so granted be set aside and defendant granted a new trial herein.

"JAMES P. DOUGHERTY.

"State of Missouri, City of St. Louis.

"Subscribed and sworn to before me this 18th day of May, 1914.

(Seal) "W. G. CARPENTER,

"Notary Public."

The joint motion of E. J. and Cornelius Dougherty to set aside the judgment was as follows:

"Comes now Cornelius Dougherty and E. J. Dougherty, defendants in the above-styled cause, and implore the court to set aside the default judgment granted against them on April 20, 1914, for the following reasons, to-wit:

"The said petitioners herein had no knowledge or notice of the setting of this said case or the trial of same, but understood that they had employed an attorney, W. G. Carpenter, to appear for them, look after and take care of their interests in said cause, but the said W. G. Carpenter did not so understand said employment, did not understand that he was to take care of their interests and so did not give proper attention to the case and the same was called and heard without any notice or knowledge of these defendants.

"That these defendants have a good and valid defense to the claim of plaintiff in the following manner, to-wit: That said note which is the basis of this action they had signed as sureties for defendant James P. Dougherty, which note was made and executed on the 22nd day of September, 1904, and was to become due six months after date. That the said note has, without their consent and without their knowledge, received many and various extensions thereon, at many and various times since the said September 22, 1904, and at no time were they ever consulted nor did they ever give their consent to such extensions, but at all times they refused to consent because at that time the principal of said note, James P. Dougherty, could have paid same.

"That the said extensions have operated against these petitioners and they should not now be held liable on said note; further your petitioners respectfully state that the judgment as rendered in this cause on April 20, 1914, has failed to give the proper and necessary credits which should be applied upon said note; that the amount so rendered is larger than is now due or owing on said note, and that book entries of other payments on said note are available to be used as evidence. Further, these petitioners show the court that they are appellants in this cause, having appealed from the judgment of the justice rendered on the sixth day of October, 1913, which said judgment as rendered against them was for...