Pry v. Hannibal & St. Joseph R.R. Co.

• Decision Date: 31 October 1880
• Parties: PRY v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY Appellant.
• Court: Missouri Supreme Court

73 Mo. 123

PRY

v.THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY Appellant.

Supreme Court of Missouri.

October Term, 1880.

Appeal from Buchanan Circuit Court.--HON. JOS. P. GRUBB, Judge.

AFFIRMED.

James Carr for appellant.

Vories, W. D. Webb and Ewing & Hough for respondent.

NORTON, J.

This is an action for damages alleged to have been sustained by plaintiff in consequence of the negligence of defendant as a common carrier. The petition was filed on the 15th day of November, 1876, on which a summons issued on the 4th day of December, 1876, returnable on the 1st day of January, 1877. This summons was returned served on the 11th day of December, 1876. On the 11th day of January, 1877, and on the eleventh day of the term of court, defendant having failed to appear to the action, judgment by default was rendered and a writ of inquiry of damages awarded. On the 18th day of January, 1877, defendant appeared and filed a motion to set aside the judgment by default, and for leave to file answer, which was overruled by the court on the 20th day of January, 1877. On the 20th day of February, 1877, defendant entered a special appearance only for the purpose of asking the judgment by default to be set aside on the ground that the service of the summons was insufficient, which motion being overruled, defendant filed a motion to strike the petition of plaintiff from the files of the court because one of the attorneys who had signed it was not authorized to practice in that court. This motion was also overruled. At the September term, 1877, of the court, the cause was submitted to a jury on the writ of inquiry of damages, defendant again appearing and cross-examining plaintiff's witnesses and introducing one on its own behalf. The jury returned a verdict assessing the damages of plaintiff at $5,000, and from the judgment thereon rendered, defendant, after making an unsuccessful motion for new trial, appealed to this court.

1. PRACTICE IN SUPREME COURT: setting aside default judgment.

Upon the state of the record above presented, the first question which arises is, whether the circuit court, in overruling the motions to set aside the judgment by default, acted arbitrarily or oppressively. The solution of this question depends mainly upon the fact whether defendant, in the said motions and affidavit accompanying the same, has disclosed a good reason for not having appeared and filed his answer in time, and whether the defense offered to be made was meritorious. Unless both these matters appear so clearly as to make it manifest that the trial court, in overruling the motion, exercised its discretion arbitrarily, this court will not interfere. The affidavit filed in support of the motion fails to come up to either of the requirements. It is as follows: “And in support of this motion to set aside the judgment by default, said Carr filed his affidavit, which, in addition to the alleged facts in said motion, charged ‘that he had been for a number years past the general attorney of the defendant, and that defendant had no local attorney in said cause, and that he resided in Hannibal, Missouri, where the general offices of the company were located; and that prior to the commencement of the January term, 1877, of the Buchanan circuit court, on the night of the 29th day of December, 1876, he went up to St. Joseph, and on the next day examined the docket of said court, to ascertain what causes were on said docket in which defendant is a party concerned; that he made a list of all of said causes, embracing the above entitled cause, for the purpose of preparing for trial in the causes set for trial, and filing an answer in the above entitled cause; that owing to the press and importance of the business in his charge, as hereinbefore stated, he forgot to file an answer in said cause until the time for filing the same had elapsed,’ and that the facts in regard to the injury complained of have been stated to him by agents and officers of the defendant, and that on said facts, in his opinion as an attorney, the defendant has a good and meritorious defense.

(Signed)

JAMES CARR.”

This affidavit does not disclose such diligence as would justify us in saying that the trial court, in overruling it on that ground, was guilty of an abuse of its discretion; but if it had shown diligence, inasmuch as it utterly fails to set forth the facts constituting the defense which defendant desires to make, so that the court might determine whether such defense was or not meritorious, it might properly have been overruled on that ground. It is true the affidavit states that it was affiant's opinion based on information given him by the agents of defendant, that the defense was a good and meritorious one. It was for the court and not affiant to determine whether the facts constituted a good defense, and the affidavit, in not setting them out, and in not referring to an answer that did set them out, so as to enable the court to determine the question, was fatally defective. Lamb v. Nelson, 34 Mo. 501; Jacob v. McLean, 24 Mo. 40; Judah v. Hogan, 67 Mo. 252.

2. PLEADING: answer: general denial.

The only answer which the record before us shows defendant offered to file, is in these words: “Defendant, for answer to plaintiff's petition filed in the above entitled cause, denies each and all the material allegations in said petition.” Such an answer as this we have held in the case of Edmonson v. Phillips, 73 Mo. 57, to be no answer.

3. PRACTICE: waiver of irregularities in service of...