Scott v. Smith

• Decision Date: 24 March 1896
• Citation: 34 S.W. 864,133 Mo. 618
• Parties: Scott v. Smith, Appellant
• Court: Missouri Supreme Court

34 S.W. 864

133 Mo. 618

Scott v. Smith, Appellant

Supreme Court of Missouri, First Division

March 24, 1896

Appeal from Jackson Circuit Court. -- Hon. James Gibson, Judge.

Affirmed.

Lathrop Morrow, Fox & Moore for appellant.

(1) Plaintiff's motion for a new trial is not provided for by statute, but it is made under the common law rule that trial courts have power to vacate their judgments during the trial term. Todd v. Railway, 33 Mo.App. 114; Nelson v Ghiselin, 17 Mo.App. 665; Williams v. Court, 5 Mo. 252; 1 Black on Judgts., sec. 297. (2) It is therefore equitable relief, not relief at law, which is sought. Whether under the statute or common law, equity requires that merits in the case and diligence of party claiming relief be shown before it will interfere. Neither is shown here. Hunt v Smith, 15 Ala. 807; Williams v. Court, 5 Mo. 248; Kirby v. Chadwell, 10 Mo. 392; Biebinger v. Taylor, 64 Mo. 63; Campbell v. Garton, 29 Mo. 343; Gehrke v. Jod, 59 Mo. 52; Austin v. Nelson, 11 Mo. 193; Harber v. Railroad, 32 Mo. 426. (3) The appellate court will review the facts where the evidence is contradictory, to the extent of ascertaining that the decision of the trial court was not an abuse of its discretion. Carr v. Dawes, 46 Mo.App. 351; Pry v. Railroad, 73 Mo. 124. (4) Where the facts are undisputed the appellate court will review the facts and record and not defer to the discretion of the trial court. Such is the case here. Henry v. Bell, 75 Mo. 194; Waddell v. Williams, 50 Mo. 216; Knapp, Stout & Co. v. Standley, 45 Mo.App. 264. (5) The court's discretion must be exercised with a due regard to established law and legal precedent. 1 Black on Judgments, sec. 354, and cases there cited. (6) A motion for a new trial will not be sustained on grounds not alleged in the motion. Albert v. Seiler, 31 Mo.App. 254; Putnam v. Railroad, 22 Mo.App. 589; Alexander v. Railroad, 54 Mo.App. 70.

Geo. B. Strother for respondent.

(1) The appellate court sometimes reviews and reverses the action of the circuit court in overruling motions for new trial where the lower court has acted arbitrarily or oppressively or a mistake was made: "For the opposite party to insist upon an advantage gained in this manner would nearly amount to a fraud upon his adversary." Spaulding v. Myers, 40 Mo. 176. In Rothman v. Schmucker, 94 Mo. 139, the court says: "That a court of general jurisdiction, proceeding according to the course of the common law, has unlimited power, during the whole of the term, over its judgments rendered at such term, is a rule of universal application." Freeman on Judgments, section 90. "Until the end of the term its judgments are in the breast of the court, and may be modified, vacated, or set aside as justice demands, becoming absolute only upon the adjournment of the court for that term." Bell v. Clark, 30 Mo.App. 224; Freeman v. Plummer, 30 Mo.App. 25; Nelson v Ghiselin, 17 Mo.App. 665; Carr v. Dawes, 46 Mo.App. 598. (2) Where the lower court sets aside its own judgment the appellate court will never interfere. Stout v. Lewis, 11 Mo. 439. (3) It has been held that severe sickness in an attorney's family is sufficient excuse to set aside a judgment rendered in his absence, and to hold other-wise would be cause for reversal. This is consonant with reason, justice, and our idea of humanity. Judah v. Hogan, 67 Mo. 252; Martin v. Tobacco Co., 53 Mo.App. 655. (4) It would certainly have been hard and very oppressive had the court refused to set aside the judgment rendered when a brother attorney was absent on account of his wife being at the point of death. On a similar state of facts it has been held that the lower court did exactly right in setting aside its judgment. The court said: "The affidavits filed with the motion, while failing to show due diligence, show an excuse for its want which as men we are bound to recognize." Martin v. Tobacco Co., 53 Mo.App. 658; Judah v. Hogan, 67 Mo. 252.

OPINION

Macfarlane, J.

This suit is for $ 5,000 damages for bodily injuries caused by the alleged negligence of defendant. The answer, in addition to a general denial, set up contributory negligence on the part of plaintiff as an affirmative defense. To this plea no reply was filed. The case was set for trial September 30, 1893. Plaintiff failed to appear either in person or by attorney. When the case was called for hearing defendant was ready for trial. No reply having been filed to the plea of contributory negligence, final judgment for failure to prosecute was rendered against plaintiff.

On the fifth of October thereafter, and during the same term of court, plaintiff filed a motion, verified by the affidavit of his attorney, to set aside and vacate the judgment for these reasons:

"First. Because plaintiff's attorney was unable to attend court on the day case was set for trial, on account of sickness in his family, said attorney's wife being confined by birth of child; that on said date of trial said attorney had three physicians to see his wife on account of his wife's critical condition.

"Second. That plaintiff's attorney was mistaken as to the day of trial, he had no notice that said cause would be tried on that date, as it was a jury case, and said attorney understood rules of court to be such that jury cases would not be called for trial on Saturday; he being a nonresident of this county was not very familiar with this court's rules and by reason of the sickness aforesaid was unable to inquire about same; that same was a surprise to plaintiff's attorney. Plaintiff had a just cause of action."

Upon hearing of the motion Mr. Strother, the attorney of plaintiff, testified that he had sole charge of the case, and, from the twenty-seventh until after the thirtieth of September, his wife was seriously and dangerously ill from childbirth, so much so as to require his constant attention upon her and prevented him from thinking of or attending to business of any kind. That he did not know the case had been set down for trial, supposing he would be notified thereof by the clerk as he had been in other cases and not being able to make inquiries for the reasons above stated. Counsel lived in another county and expected to file a reply when he went to trial as was the practice in his own circuit. The court stated that the same practice was allowed in his court.

The court sustained the motion, vacated the judgment and reinstated the case, and defendant appealed.

I. In the absence of a statutory limitation, a trial court possessing general jurisdiction and proceeding according to the course of the common law has control of its judgments of the character of this one during the term at which they are rendered, and power to vacate them in its discretion. Williams v. Circuit Court, 5 Mo. 248; Rottmann v. Schmucker, 94 Mo. 139, 7 S.W. 117; Nelson v. Ghiselin, 17 Mo.App. 663. While the discretion is judicial, yet it should not be...