Murray v. United Zinc Smelting Corp.

• Decision Date: 11 January 1954
• Docket Number: No. 1,No. 43411,43411,1
• Citation: 263 S.W.2d 351
• Parties: MURRAY v. UNITED ZINC SMELTING CORP
• Court: Missouri Supreme Court

Page 351

263 S.W.2d 351

MURRAY v. UNITED ZINC SMELTING CORP.

No. 43411.

Supreme Court of Missouri, Division No. 1.

Jan. 11, 1954.

Ralph Baird, Joplin, for appellant.

Daniel J. Leary, Joplin, for respondent.

VAN OSDOL, Commissioner.

This is an appeal from an order overruling defendant-appellant's motion to set aside a default judgment for $24,660.

Plaintiff (respondent) instituted an action September 15, 1949 for $30,000 damages for personal injury. Summons was issued and defendant, United Zinc Smelting Corporation, a corporation of the State of New York, was regularly served with process. July 14, 1950, plaintiff filed an amended petition restating his claim. In both original and amended petitions, it was charged that defendant was negligent in failing to take precautions to protect plaintiff from the injurious effect of breathing silicon dioxide while he was an employee of defendant in its ore-processing mill. Defendant appeared by attorney and filed a motion to dismiss plaintiff's original petition; and, August 12, 1950, the attorney filed motion to dismiss the amended petition on the ground that the petition failed to state a claim upon which relief could be granted. September 14, 1950, defendant's attorney, by leave of court, withdrew as counsel for defendant, and on September 28th the court overruled defendant's motion to dismiss, and defendant was given twenty days in which to further plead. On November 28, 1950, plaintiff introduced testimony tending to support his case, and the trial court found and rendered judgment for plaintiff as follows,

'Now at this day this cause comes on for hearing; the plaintiff appears by * * * his attorneys; and the defendant, although notified that this cause was set for trial on this day, appears not but makes default; and it appearing to the Court from the return of the Sheriff of Jasper County, Missouri to the writ of summons heretofore issued herein, that the defendant has been duly served with a copy of the summons and petition in this cause more than 30 days prior to this date; and it further appearing to the Court from the files and record in this cause that the defendant has heretofore appeared and filed pleadings in this cause, and later * * *, attorney for defendant, withdrew as such attorney; that the Clerk of this court thereupon notified the defendant of said withdrawal of its attorney and the setting of this cause for trial on this date; and said defendant now failing to further appear in this cause, the same was submitted to the Court for trial, a jury being waived.

'After hearing all the evidence adduced by the plaintiff, having duly considered the same; being now well and fully advised in the premises, the Court finds that the allegations contained in the plaintiff's petition are true; that the defendant is justly indebted to the plaintiff in the sum of $24,660.00 and that the plaintiff is entitled to recover that amount of and from the defendant as his debt and damages herein.

'It is therefore ordered and adjudged by the Court that the plaintiff have and recover of and from the defendant the sum of $24,660.00 the amount of his debt and damages so found due by the Court as aforesaid, together with the costs of this cause, and that execution issue therefor.'

June 25, 1952, defendant filed its motion to set aside the judgment in which motion it was stated that prior to June, 1950, defendant corporation was insolvent and, in July of that year, lost its sole remaining asset; that on August 22, 1950, prior to the entry of the judgment, defendant corporation was dissolved by the filing and publication of a certificate of dissolution in the State of New York (the transcript on appeal includes a certificate of the Secretary of State of the State of New York certifying the dissolution of defendant corporation on the stated date); that the trial court permitted the withdrawal of defendant's attorney when the motion to dismiss plaintiff's petition was pending; and that the withdrawal of the attorney, the overruling of the motion to dismiss, the introduction of the evidence supporting plaintiff's claim and the judgment rendered were without the knowledge of the liquidating trustees who are concerned with the statutory processes of dissolution and the entire situation first came to the attention of the trustees when an action was prematurely instituted in New York on the Missouri judgment of November 28, 1950, in which action issue was joined June 16, 1952 (the transcript on appeal includes an affidavit dated August 11, 1952, of the deputy circuit clerk of the Circuit Court of Jasper County, Missouri, stating that a letter advising of the withdrawal of defendant's counsel was mailed defendant on September 14, 1950; and that a notice of the entry of judgment on November 28th was mailed defendant on November 29, 1950). The motion further stated that the complaint plaint filed in New York alleged the Missouri judgment was 'for services rendered'--that this was incorrect; that the trustees, when the entire situation was called to their attention, caused an investigation which disclosed medical reports and other pertinent facts from which it appears defendant has a meritorious defense; that plaintiff in procuring the judgment introduced no medical testimony, and, if such medical testimony had been introduced, such evidence would have disclosed that plaintiff had contracted silicosis years prior to his employment by defendant; or, if plaintiff contracted silicosis as alleged, his claim was barred by applicable statute of limitations at the time of the institution of the action; that plaintiff's amended petition stating plaintiff's claim founded upon negligence was a departure from the original petition stating a claim for services rendered; that defendant has made diligent search but has been unable to locate the reporter's notes of the hearing resulting in the default judgment (in this case, this court's file includes a transcript of evidence certified by the official reporter of the Circuit Court of Jasper County as the testimony taken at the hearing of plaintiff's case, November 28, 1950--the testimony transcribed was that of plaintiff and of a physician, a specialist of the chest, and was substantial in tending to support plaintiff's case); and that 'in the circumstances and premises hereinbefore set out, defendant feels that manifest injustice will result from these and other patent irregularities unless this Court shall enter its order setting aside said judgment, permitting answer to the filed by the defendant, and the cause heard on the merits.' The motion was verified by affidavit of counsel for defendant-appellant 'according to his best information and belief.'

In reviewing the trial court's action in overruling defendant's motion to set aside the judgment, we have examined the cases cited by the parties, appellant and respondent, decided before the effective date, January 1, 1945, of the Civil Code of Missouri, enacted in 1943, and in which cases motions to set aside default judgments were timely filed and action thereon was taken by the trial court prior to the end of the term at which the judgment was rendered. See Anspach v. Jansen, 229 Mo.App. 321, 78 S.W.2d 137; Karst v. Chicago Fraternal Life Ass'n, Mo.App., 22 S.W.2d 178. We have also examined the case of Stieferman v. Stieferman, Mo.App., 219 S.W.2d 864, cited by both appellant and respondent, decided after the effective date of the Civil Code of Missouri abolishing terms of court for procedural purposes, Wooten v. Friedberg, 355 Mo. 756, 198 S.W.2d 1, 5, and in which case the motion to set aside was no doubt filed and overruled within thirty days after the rendition of judgment. A trial court's ruling upon such a motion to set aside a default judgment (when timely filed and timely acted upon by a trial court) has been considered discretionary, the trial court's action, upon a showing by defendant of reasonable diligence or excuse and a meritorious defense, being subject to review on the question of abuse of discretion. While the rule of 'sound discretion' as indicated in these cases has been said to apply generally to motions to open, set aside or vacate judgments, it is further written that in the exercise of its discretion the court is to be guided and must conform to fixed legal principles, particularly where the motion to set aside is made after the term of the rendition thereof. 31 Am.Jur., Judgments, Sec. 717, pp. 267-268. And in each of the cases cited by the parties the judgment was still 'in the breast of the court, so to speak'. Compare Wooten v. Friedberg, supra; Jeffrey v. Kelly, Mo.App., 146 S.W.2d 850. In the instant case, as we have stated, the motion to set aside the judgment was filed June 25, 1952, nearly nineteen months after the rendition of judgment, November 28, 1950.

Under Section 511.250 RSMo 1949, V.A.M.S., a judgment may be set aside for irregularities upon motion made within three years after the term at which such judgment was rendered. In view of the provisions of Section 510.370 RSMo 1949, V.A.M.S. and 42 V.A.M.S. Supreme Court Rule 3.25, the word 'term' must be taken to mean thirty days after the judgment is rendered. Wooten v. Friedberg, supra; Casper v. Lee, 362 Mo. 927, 245 S.W.2d 132. Such motion must be based upon an irregularity which is patent on the record, and not one depending upon proof of fact dehors the record; but if an error of fact is stated which may...