Parks v. Coyne

• Decision Date: 08 May 1911
• Citation: 156 Mo. App. 379,137 S.W. 335
• Parties: PARKS v. COYNE.
• Court: Missouri Court of Appeals

137 S.W. 335

156 Mo. App. 379

PARKS v. COYNE.

Springfield Court of Appeals. Missouri.

May 8, 1911.

1. JUDGMENT (§§ 143, 145)—DEFAULT—SETTING ASIDE—RIGHT TO RELIEF.

To open a default, defendant must show good reason for his default, and that he has a meritorious defense, and both must so clearly appear that the refusal to set aside the default would be arbitrary.

2. JUDGMENT (§ 143) — DEFAULT — SETTING ASIDE—EXCUSES—NEGLIGENCE OF COUNSEL.

A default will not be set aside, merely because the attorney of the petitioner was negligent, for his negligence is attributed to the client.

3. JUDGMENT (§ 139) — DEFAULT — SETTING ASIDE.

The propriety of setting aside a default depends on the circumstances of the case.

4. JUDGMENT (§ 143) — DEFAULT — SETTING ASIDE—DILIGENCE.

To have a default set aside, defendant is not required to show such conduct as a skilled lawyer would have exercised, but is only required to exercise ordinary diligence.

5. JUDGMENT (§ 119) — DEFAULT — TIME — ABANDONMENT BY COUNSEL.

Where an attorney abandons his client's cause without notice, the client should be given a reasonable time to secure other counsel, before judgment is taken against him by default.

6. JUDGMENT (§ 139) — DEFAULT — TIME FOR APPLICATION.

Where a defendant, within three days after default, moved to set it aside, and agreed to proceed to trial at that term, the strict enforcement of the rule as to the court's discretion in setting aside defaults, based on the theory that plaintiff will suffer expense or delay, is not called for.

7. JUDGMENT (§ 138) — DEFAULT — SETTING ASIDE.

Where the application discloses a good defense on the merits and a reasonable excuse, and no substantial injury would result from the delay, the court should open a default.

8. APPEAL AND ERROR (§ 957)—DISCRETION OF TRIAL COURT—SETTING ASIDE DEFAULT.

An appellate court will more readily interfere with the trial court's discretion in refusing to set aside a default, than when the default is set aside, as in the latter case justice will yet be done on the merits.

9. JUDGMENT (§ 143)—DEFAULT—EXCUSES.

Mere forgetfulness of a party or his attorney is not ground for setting aside a default; but a misunderstanding or mistake is.

10. JUDGMENT (§ 143)—DEFAULT—EXCUSES.

Defendant, who had no interest in a mine, was sued with the owner for injuries to a servant. The attorney for an employer's liability insurance company told defendant that he would look after his interest in the suit, which was the customary practice in cases involving liability insurance. Process was not served on the owner, and the attorney of the insurance company failed to file an answer for him. Default was entered on the first day of the term, without notice to defendant, and three days later he moved to set it aside, showing merits, and offering to go to trial at that term. Held, that proper diligence was shown, and the court should have opened the default.

Appeal from Circuit Court, Jasper County; Henry L. Bright, Judge.

Action by Wilda Parks against Thomas Coyne and another. From a judgment overruling a motion to set aside a default judgment against the defendant named, he appeals. Reversed and remanded, with directions to set aside the default upon condition stated, and, upon defendant's failure to perform such conditions, judgment to be affirmed.

D. C. Mallory and Frank L. Forlow, for appellant. W. J. Owen and Thomas & Hackney, for respondent.

NIXON, P. J.

This suit was instituted on August 7, 1905, in the circuit court of Jasper county by Wilda Parks against M. W. Rundell and Thomas Coyne. The relief sought was damages in the sum of $4,500 alleged to have ensued by reason of the death of plaintiff's husband, Robert Parks, on August 30, 1904, while working in the Mary Louise mine near Webb City, as a servant of the defendants.

It appears that Rundell resided in New York. The summons in the case was duly served on Coyne, but as to Rundell the sheriff's return recited that he could not be found in Jasper county. Some time was then consumed in an effort to have Rundell served, and the case was continued from term to term. On November 16, 1908, plaintiff appeared in court and voluntarily dismissed the cause as to Rundell, and judgment by default for $2,000 and costs was entered for plaintiff against defendant Coyne, who did not appear or plead. On November 19, 1908, Coyne, having learned that a default judgment had been taken against him, filed a motion to set the same aside, and it is from the action of the lower court in refusing to do so that defendant Coyne has appealed. The question for our consideration is therefore one of practice—whether the trial judge so abused the discretion confided to him as to warrant a reversal by this court.

Defendant's motion to set aside the default judgment alleges that the suit was originally filed in the circuit court at Joplin on the ____ day of ____, 1904, against M. W. Rundell, Thomas Coyne, and the Mary Louise Mining Company; that he (Coyne) did not employ an attorney to represent him, but that A. E. Spencer, who was attorney for the insurance company carrying a policy for the defendant Rundell appeared in the cause and filed an answer for all of the defendants, including Coyne, and took charge of the defense of said cause. "That on January 19, 1905, the said Spencer filed an amended answer for all of the defendants in said cause. That on the 20th day of January, 1905, said cause was tried before a jury, and the said A. E. Spencer appeared as the attorney for all of the defendants, and W. J. Owen and A. L. Thomas as attorneys for the plaintiff. That after the plaintiff's evidence was all in the court sustained a demurrer thereto, and plaintiff took a nonsuit, with leave to move to set the same aside, and that said judgment was a final judgment in favor of the defendants. That afterwards, on the 1st day of February, 1905, a motion to set aside the judgment of nonsuit was filed and heard, and the same was overruled. That all through the trial of said cause the said A. E. Spencer represented this defendant, Thomas Coyne, as well as the other defendants. That no charge was made against this defendant for services by the said A. E. Spencer.

"That thereafter, on the 7th day of August, 1905, this suit was filed in the circuit court at Carthage, and was brought by the same plaintiff against the same defendants, M. W. Rundell and Thomas Coyne, and was for the same cause of action that was tried in the circuit court at Joplin, as above described, for the death of plaintiff's husband by the negligence of the defendants on the 30th day of August, 1904. * * * That on the 18th day of February, 1907, the plaintiff filed in said cause an amended petition against the said Thomas Coyne and M. W. Rundell. That on November 18, 1908, said cause was continued by agreement of parties over the November term of court. That the said Coyne did not employ an attorney to represent him in said cause, for the reason that A. E. Spencer, who was representing the defendant M. W. Rundell, through the insurance company which carried a policy on the mine, had represented the defendant Thomas Coyne in said suit at Joplin, and this suit, being for the same subject-matter, and between the same parties, and this defendant, Thomas Coyne, having learned that the cause had been continued in the said court from time to time, took it for granted that the said A. E. Spencer was giving this cause the necessary attention, and the same attention that he had given to the cause above referred to pending in the circuit court at Joplin, and that this defendant, Thomas Coyne, would be notified when the cause should be for trial by the said A. E. Spencer, who had given him the notice from time to time in the other suit. That he had been advised by the said A. E. Spencer that he would not need to employ an attorney, because he, in looking after the interests of the defendant M. W. Rundell, would also be looking after the interests of this defendant in said suit, and this defendant, Thomas Coyne, says that for the reason that the said A. E. Spencer had taken care of the interests of the defendants in the other suit, and his offer to do so, led this defendant to believe, since November 1, 1905, that the said Spencer was looking after the interests of said defendant, as well as the interests of the said M. W. Rundell, his codefendant.

"This defendant further states that he was advised by A. E. Spencer in the spring of 1908, at the time of the settlement in the Joplin circuit court of the suit of Nellie Rogers against the same parties, that A. L. Thomas, attorney for the plaintiff in this suit, was desirous of making a settlement of this suit, and that this defendant, at the request of the said A. E. Spencer, called upon the plaintiff in this suit, and she offered to take $400 in settlement of the claim in this suit, and that he made report of the offer to the said A. E. Spencer, attorney for the insurance company, and presumed that the offer was still pending to compromise said suit, and heard nothing further from said cause until Monday afternoon, November 16, 1908, when he was advised that the suit had been dismissed as against M. W. Rundell, and a judgment taken against him by default for the sum of $2,000, which said facts are fully set out in the affidavits herewith filed.

"And defendant further states that he has a good and meritorious defense to the cause of action stated in the petition of plaintiff, to wit: That the accident which caused the death of Robert Parks, the plaintiff's husband, occurred on August 30, 1904, and that on the 1st day of August, 1904, the defendant, Thomas Coyne, sold all of his interest in the said mine to M. W. Rundell, trustee, and had nothing to do with the management of said property after the sale. That he did not employ the men, and did not have charge of the work of mining that was being carried on, and knew nothing of the accident until...