Rose v. Rose
| Decision Date | 07 February 1966 |
| Docket Number | No. 24342,24342 |
| Citation | 401 S.W.2d 946 |
| Parties | Doris K. ROSE, Respondent, v. Ben ROSE, Ace Sod and Trees, Inc., and Rose Building and Construction Company, Inc., Appellants. |
| Court | Missouri Court of Appeals |
Robert G. Duncan, Pierce, Duncan, Beitling & Shute, Kansas City, for appellants.
Wilbur L. Pollard, North Kansas City, Williams, Norton & Pollard, North Kansas City, of counsel, for respondent.
This is an appeal by the defendants below from the action of the trial court in overruling a motion to set aside default judgment theretofore entered against defendants. Such judgment was for an amount within our jurisdiction.
On December 19, 1963, plaintiff filed her first amended petition in two counts seeking recovery of a balance due on a contract to sell real estate in count one and seeking to recover on a guarantee of such contract in count two. Defendants were Ben Rose, an individual, Rose Building and Construction Company, Inc., a corporation, and Ace Sod and Trees, Inc., a corporation. Each defendant filed separate answer on January 21, 1964. Thereafter on February 26, 1965, the then attorney for the defendants filed his formal withdrawal with the court. Thereafter on March 9, 1965, plaintiff announced ready for trial and the cause was set for March 15, 1965. On March 15, 1965, plaintiff appeared but defendants failed to appear and the cause was continued to April 5, 1965. Plaintiff appeared but again defendants failed to appear on April 5, 1965, and the cause was continued to April 8, 1965. On this last mentioned date plaintiff appeared, but defendants again failed to appear, and after plaintiff adduced evidence as to the amount of damage, the court entered judgment by default against the defendants in the amount of $2,373.48. The present attorney for defendants entered his appearance of record in this case on April 26, 1965. Defendants allege (it does not appear of record) that execution on such default judgment was issued and thereafter served on May 4, 1965.
On May 5, 1965, defendants filed their motion to set aside the default judgment. This motion was superseded by an amended motion to set aside judgment and motion to quash execution filed May 6, 1965. The first motion was verified, by the individual defendant Ben Rose, but the amended motion upon which the trial court acted was not verified. This motion set out some of the above procedural history of this case (with some discrepancy in dates); alleged the withdrawal of the previous attorney for the defendants, and that none of the defendants had notice of the trial setting for April 5, 1965, or of the setting and entry of default judgment on April 8, 1965. The motion alleges that the new attorney entered his appearance on April 23, 1965 (the record shows April 26, 1965), and alleges that such attorney had no notice of the judgment (which had theretofore been entered). The motion then states that the new attorney inquired of the clerk as to the date of the trial setting on this case, and was advised that a case styled 'Rose vs. Ace Sod and Trees, Inc.' was set for trial on May 10, 1965; the attorney did not know that there were two distinct cases. The date of this inquiry is not specifically alleged in the motion, but it would appear to the writer that it occurred subsequent to the entry of the judgment on April 8, 1965. The motion then recites the issuance and service of execution and concludes with the following two paragraphs:
Our courts have repeatedly held that a motion to set aside a default judgment appeals to the discretion of the trial court; that this is a judicial discretion that can not be exercised in an arbitrary manner. Before a defendant is entitled to relief on appeal it must so clearly appear that the defendant had a good and sufficient reason for his default and that he has a meritorious defense to plaintiff's cause of action, that the appellate court can conclude that the trial court abused its discretion and acted in an arbitrary manner in refusing to set aside the default judgment. None of these things appear from the motion in the case at bar. It does not appear that the previous attorney failed to notify defendants when he withdrew, as was true in Lewis v. VanHooser, 206 Mo.App. 618, 227 S.W. 618. Since it appears that the previous attorney withdrew not later than February 26, 1965, when such...
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