Murray v. Sanders, WD

• Decision Date: 10 January 1984
• Docket Number: No. WD,WD
• Citation: 667 S.W.2d 426
• Parties: Robert J. MURRAY and Barbara S. Murray, Respondents, v. John J. SANDERS and Donna M. Sanders, Appellants. 34381.
• Court: Missouri Court of Appeals

Page 426

667 S.W.2d 426

Robert J. MURRAY and Barbara S. Murray, Respondents, v. John J. SANDERS and Donna M. Sanders, Appellants.

No. WD 34381.

Missouri Court of Appeals Western District.

Jan. 10, 1984.

As Modified March 21, 1984.

John R. Mencl, Independence, for appellants.

Tom B. Kretsinger, Jr., Liberty, for respondents.

Before MANFORD, P.J., and CLARK and KENNEDY, JJ.

KENNEDY, Judge.

Plaintiffs in a court-tried case in which defendants did not appear, received judgment for $8,500 actual damages and $5,000 punitive damages for defendants' alleged fraudulent misrepresentation. The alleged fraudulent misrepresentation was in connection with the sale of a house by defendants to plaintiffs; defendants had allegedly told plaintiffs there had been no water problems with the house, when it had in fact been flooded. The judgment was entered by the court upon testimony of plaintiffs Mr. and Mrs. Murray on November 8, 1982. The defendants were not present in person or by attorney, although the case had been specially set for trial on November 8 by order dated August 9, 1982.

Defendants Mr. and Mrs. Sanders on November 24 filed a motion to set aside the judgment, alleging that they did not know the case had been set for trial and that they had a meritorious defense to the plaintiff's claim. Upon an evidentiary hearing the trial court refused to set the judgment aside, and an appeal from the judgment was thereupon taken to this court.

The judgment is reversed and the case remanded for a new trial.

Until the trial date approached, defendants had been represented by Mr. Stephen Crain, but Mr. Crain had withdrawn as their attorney. His motion for permission to withdraw had been filed on October 25, 1982. The court entered an order allowing the withdrawal on October 28. Apparently Mr. Crain wrote to the Sanderses by letter dated November 1, notifying them of his withdrawal. Exactly when that letter was received by the Sanderses and exactly what it said, we have no way of knowing. The letter was before the trial court as an exhibit, but it has not been filed here. We gather from Mr. Crain's testimony on the motion to set aside the default judgment that his November 1 letter informed the Sanderses of his withdrawal and also had warned them that Mr. Kretsinger and Mr. Caruso, who had succeeded the attorney who had filed the case for the plaintiffs, would very likely pursue the case in a purposeful and energetic way. It did not inform the Sanderses that their case was set for trial on November 8.

On November 8, the plaintiffs, Mr. and Mrs. Murray, showed up for trial with their attorney, Mr. Kretsinger. The defendants, as earlier noted, were not present in person or by attorney. The Murrays waived a jury trial and proceeded to present their evidence. Their evidence consisted of their own testimony. Their evidence of damages was a written appraisal by Silvius Appraisal that the house as represented would have been worth $53,500, but that the house with the history of flooding was worth $45,000. The trial court added $5,000 punitive damages.

Thereafter, the court clerk mailed a statement for costs to the Sanderses. Mr. Sanders on receipt of this statement called Mr. Crain, who checked the court files and learned that a judgment had been taken against the Sanderses. He wrote a letter to the Sanderses, dated November 18, informing them of that fact.

The Sanderses then employed another attorney, who on November 24, 1982, filed a motion to set the judgment aside. Evidence was heard on said motion on December 1 and the court overruled the same.

Several considerations lead us to reverse the judgment and remand the same for trial.

I

While setting aside a default judgment (as we shall call it, but see Weber v. Hoesch, 603 S.W.2d 60, 61 (Mo.App.1980); Williams Energy Co. v. Tracy Truck Leasing, 562 S.W.2d 765, 767 (Mo.App.1978); National City Bank v. Pattiz, 26 S.W.2d 815, 816 (Mo.App.1930)) is a matter left to the discretion of the trial court and the trial court's ruling is to be interfered with by the appellate court only for abuse of discretion, still the discretion not to set aside is a good deal narrower than the discretion to set aside. Appellate courts are more likely to interfere when the trial court has denied the motion to set aside than when it has granted the same. Schoenhoff v. Owens, 564 S.W.2d 273, 275 (Mo.App.1978); Whitledge v. Anderson Air Activities, 276 S.W.2d 114, 116 (Mo.1955); Anspach v. Jansen, 229 Mo.App. 321, 78 S.W.2d 137, 138 (1935). The reason for this is our system's zeal for the trial of any cause on its merits and its distaste for a default judgment.

The philosophy which guides our consideration of relief from default judgments has scarcely been more cogently articulated than by Judge Cottey, writing for this court in Vaughn v. Ripley, 416 S.W.2d 226, 228 (Mo.App.1967):

Counsel for both sides seem to be under the impression that the decision on this appeal will turn on the question of who was right and who was wrong in the affair that culminated in the judgment below. But an approach by that path is more apt to lead us around the problem than to it. The question before us is whether the trial court abused its discretion by setting aside the judgment and ordering a new trial. By the very terms of the rule under which that action was taken, its propriety must be judged by whether it was taken "for good cause." The rule was not designed to censure wrong, but to right it. The private quarrel of the lawyers is therefore a distraction, not an aid, to the inquiry. Error implies fault. "Good cause" for remedying it begins with that premise and concerns itself only with whether the fault should be excused or extenuated in the interests of justice. The term "good cause", as used in this connection is not susceptible of precise definition, but it was obviously coined to serve a remedial purpose in a matter addressed primarily to the conscience of the court and it should therefore be interpreted with commensurate liberality, not only to prevent a manifest injustice but to avoid a threatened one, especially in cases tried without a jury where evidence on one side only is presented. (Citations omitted). When a judgment has been set aside in conformity with that principle, the result ought not be overturned except for most cogent reasons directly affecting the administration of justice, for if the order be only doubtfully in error, the error is a transient one "and justice will yet be done on the merits." (Citations omitted). This is not to condone conduct intentionally designed or irresponsibly calculated to impede the work of the courts, but only to say that where a reasonable doubt exists, it should be resolved in favor of good faith.

In order to secure relief from a default judgment, the defaulting party must show a meritorious defense, reasonable diligence or excuse for default or non-appearance, and that no substantial injury to the plaintiff will result from a delay. Schoenhoff v. Owens, supra at 275.

We are unable to agree with respondents that the Sanderses were guilty of such a lack of diligence as to deprive them of their opportunity to present any defense upon the merits. While it can scarcely be said that the Sanderses moved with alacrity to get a new attorney after Mr. Crain's withdrawal, still there was nothing to indicate to them that there was any urgency about it. The earliest time they could have learned that Mr. Crain planned to withdraw as their attorney was October 23rd. Mr. Crain had on October 22 mailed to them a copy of his "motion to withdraw as attorney of record" in which he asked the court for its order "allowing him to withdraw as said attorney". That motion was heard and granted on October 28. On November 1 Mr. Crain wrote the Sanderses a letter and informed them of the granting of the motion.

It must be borne in mind that the Sanderses did not know the case was set for trial on November 8. They testified on the motion to set aside the judgment tha...