Parks v. Coyne

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

137 S.W. 335

156 Mo.App. 379

WILDA PARKS, Respondent, v. THOMAS COYNE, Appellant

Court of Appeals of Missouri, Springfield

May 8, 1911

Appeal from Jasper Circuit Court.--Hon. Henry L. Bright, Judge.

REVERSED AND REMANDED (with directions).

D. C Mallory and Frank L. Forlow for appellant.

(1) When the defendant Coyne, showed to the court that he had a meritorious defense and the decree of diligence had been employed which the evidence here established, and taking into consideration the conduct of the plaintiff from the beginning of this cause until the day on which the default judgment was entered, it was the duty of the trial judge to set aside the interlocutory judgment. Adams v. Hinchman, 43 Mo 168; Robin v. Pub. Co., 127 Mo. 385; Welch v Mastin, 98 Mo.App. 273; Hoffman v. Loudon, 96 Mo.App. 184; Lamb v. Nelson, 34 Mo. 501; Hall v McConey, 132 S.W. 618. (2) The application made by defendant to set aside the judgment by default in this cause sets forth the general grounds of defense and if true, shows that the plaintiff had no right to recover against the defendant. Frorez v. Uhrig, 35 Mo. 517. (3) As stated by Judge Gray in the opinion of this court in the case of Hall v. McConey, 132 S.W. 618, the general rule is that, where the application discloses a good defense on the merits, and a reasonable excuse for the delay, and no substantial injury has resulted from such temporary delay, the court should exercise its discretion in favor of the trial on the merits. Tucker v. Ins. Co., 63 Mo. 588; Stout v. Lewis, 11 Mo. 438; Judah v. Hogan, 67 Mo. 252; Barto v. Sioux City, 119 Iowa 179; Baxter v. Chute, 50 Minn. 164; Walsh v. Boyle, 94 Minn. 437; Miller v. Carr, 116 Cal. 378; Morse v. Callantine, 19 Mon. 87; Evans v. Terrell (Tex.), 95 S.W. 684.

W. J. Owen and Thomas & Hackney for respondent.

(1) A defendant in default should not merely show that he has a meritorious defense, but likewise the exercise of that reasonable prudence and diligence expected of a person in his situation. Colter v. Luke, 129 Mo.App. 702. (2) To warrant the appellate court in interfering with the action of the trial court in refusing to set aside the judgment by default both of these things must appear so clearly as to make it manifest that the refusal of the trial court was arbitrary. Robyn v. Pub. Co., 127 Mo. 390; Fry v. Railroad, 73 Mo. 123; Judah v. Hogan, 67 Mo. 262; Tucker v. Ins. Co., 63 Mo. 588; Grippen v. Veil, 56 Mo. 310.

NIXON, P. J. Cox, J., concurs; Gray, J., having been judge of the circuit court of Jasper county at the first trial of this case in the year 1905, not sitting.

OPINION

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 $ 4500 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 $ 2000 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 non-suit with leave to move to seat 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 co-defendant.

"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 $ 2000, 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 after it had happened and that he had no interest in the mine, machinery or property, and had nothing to do with the operation thereof in any manner whatever. That he was not and is not liable in damages to the plaintiff for the death of her husband, all of which he will be able to fully show if permitted to make his defense herein.

"Wherefore, this defendant prays the court to set aside the judgment of default entered against him in said cause and permit him to make his defense therein for the reasons herein stated and shown by the affidavits herewith filed."

Coyne's affidavit filed in support of this motion is in part as follows:

"Affiant...