Santa Fe Car Icing Co. v. Kemper

Decision Date07 October 1912
Citation149 S.W. 1163,166 Mo.App. 613
PartiesSANTA FE CAR ICING CO., Appellant, v. T. J. KEMPER, JESSE WILLIAMS, M. L. MILLER, FRED R. EWING, ROBERT ROBERTSON, HARRY H. ALLEN, J. S. LYONS, W. H. HULL, THOMAS L. CONNELLY, WEBB CARLTON, B. M. CLINE, E. E. SCHULTZ and HARRY CZARLINSKY, Respondents
CourtKansas Court of Appeals

Appeal from Jackson Circuit Court.--Hon. Kimbrough Stone, Special Judge.

REVERSED AND REMANDED (with directions).

Judgment reversed and cause remanded.

Lathrop Morrow, Fox & Moore for appellant.

(1) An appeal lies from the order setting aside the judgment. Miller v. Crawford, 140 Mo.App. 711; Harkness v Jarvis, 182 Mo. 231. (2) A motion to set aside judgment by default must state facts which show a meritorious defense and be supported by an affidavit showing due diligence. R. S 1909, sec. 2104; Cowan, Trustee v. Bircher, 5 Mo.App. 577; Campbell v. Garton, 29 Mo. 343; Castilio v. Bishop, 51 Mo. 162; Palmer v. Russell, 34 Mo. 476; Biebinger v. Taylor, 64 Mo. 63. (3) Due diligence and a meritorious defense must be shown. R. S. 1909, sec. 2104; Billingham v. Miller Co., 115 Mo.App. 154; Hoffman v. Loudon, 96 Mo.App. 184; Lecompte v. Wash, 4 Mo. 557; Weimer v. Morris, 7 Mo. 6; Field v. Matson, 8 Mo. 686; Kerby v. Chadwell, 10 Mo. 392; Austin v. Nelson, 11 Mo. 193.

Charles L. Shannon for respondents.

OPINION

JOHNSON, J.

--This is an action on a bond commenced in the circuit court of Jackson county, October 31, 1910. The defendants are the principals and two of the three sureties who executed the bond. The principals were partners engaged in the business of selling ice under the firm name of The Ice Wagon Drivers Union and the bond was executed and delivered to plaintiff, a manufacturer of ice, to secure the payment of ice to be purchased by the partnership. The petition alleges that after the execution of the bond, plaintiff, at divers times, sold and delivered ice to defendants of the value of $ 519.75, for which defendants failed to pay and prays judgment on the bond for that sum, with interest and costs. An answer in the nature of a general denial was filed January 12, 1911, by all of the defendants. W. F. Lyons signed this answer as the attorney of the defendants but made no further appearance in the case and was superseded by Charles Shannon, another member of the Jackson county bar.

The case was set for trial on March 25, 1911, but was not tried on that date for the reason that Mr. Shannon had gone abroad. It was reset for trial on June 14 of the same year but again was continued for the same reason. On or about November 29, 1911, the assignment judge set the case for trial on December 6, 1911. Mr. Shannon had returned from his foreign trip but had gone to Chicago on professional business before the assignment of the case for trial and did not return until after the day of trial. He had no knowledge of the setting of the case but did know that court was in session and that the case was subject to assignment. He left no instructions at his office about the case and the person left in charge of his office could find no memorandum of it on the office docket. Learning of Mr Shannon's absence the attorney of plaintiff who was anxious to try the case had Mr. Shannon's office informed of the approaching trial, and on the morning of the trial day, conferred with Mr. Lowe who had been a law partner of Mr. Shannon and was thought by plaintiff's attorney and the court officers still to be his partner. At the end of the conference Mr. Lowe told plaintiff's attorney to "go ahead and take judgment. We are not interested in it." When the case was called plaintiff answered ready and no one appearing for defendants a default was entered and the court proceeded to hear evidence offered by plaintiff. The evidence was to the effect that plaintiff had sold and delivered eight cars of ice to defendants of the total value of $ 519.75; that at different times defendants had given plaintiff two checks of $ 119.70 each on account of the purchases; that these checks had been dishonored and that no part of the account had been paid. The court then rendered the following judgment:

"Twentieth Day November Term, 1911. Wednesday, Dec. 6th, 1911.

"Now on this day this cause coming on regularly for trial, comes the plaintiff by its attorneys and defendants come not at this time, but make default, and now plaintiff waives a jury in the trial of this cause, and defendants are deemed to waive a jury and this cause is submitted to the court upon the pleadings and the court having heard the evidence and being fully advised in the premises finds for the plaintiff in the sum of five hundred and fifty-two dollars and fifty cents ($ 552.50).

"Wherefore it is ordered and adjudged by the court that the plaintiff have and recover of and from defendants the sum of one thousand dollars ($ 1000) the amount of bond sued on herein to be satisfied by the payment of said sum of five hundred and fifty-two dollars and fifty cents ($ 552.50) with interest thereon from this date at the rate of six per cent per annum together with the costs of this cause, for which last mentioned sum, interest and costs let execution issue."

Ten days later, Mr. Shannon filed on behalf of defendants a "motion to set aside default judgment" as follows: "Now come defendants and move the court to set aside the judgment rendered by default in the above entitled cause on the 6th day of December, 1911. Defendants state that they have a good and sufficient defense to plaintiff's claim as set out in plaintiff's petition; that this cause was set for trial and judgment rendered while the attorney for defendants, Charles L. Shannon, was out of the city and out of the state; that neither of the defendants nor their attorney had knowledge of the setting of the case for trial nor of the plaintiff's taking judgment by default until several days after said judgment by default was rendered.

"Wherefore defendants ask that the said judgment by default so rendered be set aside and the case again set for trial."

This motion, which was not verified by affidavit, was heard and sustained December 23, 1911, and plaintiff appealed from the order setting aside the judgment and granting defendants a new trial. At the hearing of the motion Mr. Shannon testified: "Several days prior to the time that this case was called and set for trial, I did not know when it was set, I was called to Chicago to take depositions and I went to Chicago and took the depositions and I knew nothing about the case being set, and I expected to be away over the term, and went to Chicago and took the depositions and on my return, I was told that judgment had been rendered by default; I was informed that Mr....

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