National City Bank v. Pattiz
| Decision Date | 08 April 1930 |
| Docket Number | No. 21042.,21042. |
| Citation | 26 S.W.2d 815 |
| Parties | NATIONAL CITY BANK OF ST. LOUIS v. PATTIZ. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; Claude O. Pearcy, Judge.
"Not to be officially published."
Action by the National City Bank of St. Louis against M. B. Pattiz. Judgment for plaintiff, and, from an order setting aside the judgment, plaintiff appeals.
Affirmed and remanded.
Jeffries, Simpson & Plummer, of St. Louis, for appellant.
A. Sloan Oliver, of St. Louis, for respondent.
The National City Bank of St. Louis brought suit against M. B. Pattiz on a promissory note made payable to the order of plaintiff thirty days after date. It was executed by the Grand Furniture Company, through M. B. Pattiz, president, as maker, and indorsed by him prior to delivery. The suit was instituted on February 28, 1928, returnable to the April term. At that term, on April 20, 1928, defendant filed an answer consisting of a general denial, and the further plea that there was no consideration for the indorsement. The case was thereafter set down for trial. It was called in the assignment division of the circuit court of St. Louis on June 6, 1929. No one appeared for the defendant. The cause proceeded to trial, a jury was waived, the case submitted upon the evidence adduced by plaintiff, and a judgment rendered in plaintiff's favor and against defendant.
Defendant had employed one Alexander R. Russell as his attorney. Three months prior to the date of the trial, Mr. Russell had died, and his legal business was taken over by another attorney, Mr. A. Sloan Oliver. No motion for a new trial was filed within the statutory time, but, after the expiration of four days, and during the same term, defendant filed a motion to set aside this judgment. The motion was sustained, and the judgment set aside, and from this order plaintiff appeals.
The motion to set aside the judgment recites the fact of the filing of the petition and answer, the employment of Mr. Russell as counsel, and his death. It also alleges that the legal business of Mr. Russell was taken over by Mr. Oliver, and that, when said cause appeared on the trial docket for assignment on June 4, 1929, the said A. Sloan Oliver overlooked and failed to note said cause being reassigned and set for trial on said date; that he was in the assignment division on that date, but did not hear said case called, and did not know it was pending until June 8, 1929, two days after judgment had been rendered against defendant, and after his attention had been called to said fact by a notice of judgment published in the Daily Record of the city of St. Louis. The motion further states that defendant has a good and meritorious defense to said suit, in that there was no consideration to defendant for his indorsement of the note, and that he was relying upon Oliver to notify him when said cause was set for trial and to represent him in presenting his defense upon a hearing upon the merits; that the judgment was not rendered against him due to any negligence or carelessness on his part; that at the time of the death of said...
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