Oliver v. Scott
| Decision Date | 09 February 1948 |
| Docket Number | 20918 |
| Parties | OLIVER v. SCOTT |
| Court | Kansas Court of Appeals |
'Not to be published in State Reports.'
J. K Owens, of Kansas City, for appellant.
Claude L. Schenck, of Kansas City, for respondent.
SPERRY PER CURIAM
Jesse Oliver, plaintiff, sued Emmett J. Scott, defendant, for actual damages in the amount of $ 1000 and for punitive damages in a like sum. He was awarded a default judgment for the full amount sought. Defendant appeals.
On August 27, 1946, plaintiff filed his petition for damages alleging an unprovoked assault by defendant with a cocked pistol and with his hands. On September 25, defendant filed two motions, one for security for costs and one for dismissal. No notice or service thereof was had on plaintiff.
On October 18, plaintiff filed motion to strike said motions of defendant, alleging that he had not been served with copies of same, or notice of the filing thereof.
On October 24, Judge Broaddus sustained plaintiff's motion to strike and granted defendant ten days within which to plead.
On November 8 (four days after expiration of the period granted) defendant filed answer, without serving plaintiff with notice or with a copy thereof.
On November 9, the cause was assigned to Division 6 and, on November 12, the cause was returned to the general docket.
On November 13, plaintiff filed motion to strike defendant's answer, alleging that same was filed out of time and without notice or service of a copy thereof on plaintiff. This motion was heard on the same day filed, after telephoning the office of defendant's attorney. It was sustained on both grounds and the cause was set for trial on November 25.
On November 25, said cause was assigned to Division 7 for trial and was tried on that day. Plaintiff appeared in person and by attorney and defendant appeared by his then attorney of record, who objected to the reception of evidence on the grounds that there was nothing before the court and that there had been no 'listing' of the case, which objection was overruled.
Plaintiff testified to the effect that he was operating a taxicab on August 27, 1946; that defendant pointed a cocked pistol at him and struck him with his fists and with the pistol, from which treatment he suffered two fractured ribs and was confined to a hospital for a time. Hershel Toms testified on behalf of plaintiff to the effect that he witnessed the assault; that plaintiff alighted from his cab, in which two passengers were riding; that he was assaulted by defendant as stated by plaintiff; and that plaintiff did nothing to provoke said assault.
It is recited in the judgment that by agreement of the parties a jury was waived and the cause submitted to the court on the pleadings and on the evidence. The court found for plaintiff, in the amount of $ 1000 actual and $ 1000 punitive damages, and rendered judgment accordingly.
On December 4, defendant filed motions for new trial and to arrest judgment and, on December 5, filed 'Motion to Set Aside the Default Judgment.' No service of these motions was had on plaintiff and on December 10 plaintiff moved to strike them.
On December 12, defendant filed motions for new trial, to arrest, and to set aside default judgment, first having served plaintiff with copies thereof.
On January 9, 1947, plaintiff's motion to strike defendant's motions filed December 4 and 5 was heard and sustained.
On January 15, defendant filed motion for rehearing and, on January 17, same was sustained and defendant's motions for new trial, to arrest, and to set aside default judgment (filed Dec. 4 and 5) were heard, considered, and overruled.
Defendant makes but one assignment of error: 'The court erred in striking appellant's answer from the file and rendering default judgment against defendant.'
The answer was filed November 8, 1946, at which time defendant was in default, not having filed same within thirty days of date of service of process on him, nor within the time allowed by the court. Section 58, Laws Missouri 1943, page 373. Section 847.58, Mo.R.S.A.
The court had the inherent power, of its own motion, to strike an unauthorized pleading, or one filed out of time, because such power is necessary for the court to bring about the orderly and expeditious transaction of such businesses as may be brought before it, the very purpose of its existence. See Clark v. Reardon, 231 Mo.App. 666, 104 S.W.2d 407, loc. cit. 410.
The answer was stricken on November 12, and on that date the case was set for trial on November 25. Defendant took no steps during the time between these two dates toward filing an answer, nor is there any explanation offered as to his failure so to do. He did not ask leave to file any pleading, or offer to file anything. He at no time made any explanation of his failure to plead within the time allowed, such as might have caused his tardiness. We cannot hold the trial judge in error for having held defendant to be in default, under the...
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