Stanton v. Hanna

• Decision Date: 03 December 1917
• Docket Number: No. 18871.,18871.
• Citation: 199 S.W. 145
• Parties: STANTON v. HANNA.
• Court: Missouri Supreme Court

199 S.W. 145

STANTON v. HANNA.

No. 18871.

Supreme Court of Missouri, Division No. 1.

December 3, 1917.

Appeal from Circuit Court, Laclede County; L. B. Woodside, Judge.

Action by Guy R. Stanton against Harry Hanna. Judgment by a justice of the peace for defendant, and on appeal to the circuit court judgment for plaintiff by default, and defendant filed a petition for review which was sustained, and plaintiff appealed to the Springfield Court of Appeals, which ordered dismissal of the appeal; but on the ground of conflict of decisions the cause was certified (185 Mo. App. 91, 170 S. W. 452) to the Supreme Court. Appeal dismissed.

D. D. McDonald and Don O. Vernon, both of Lebanon, for appellant. L. C. Mayfield and A. W. Curry, both of Lebanon, for respondent.

BROWN, C.

This suit was instituted before a justice of the peace in Laclede county, where it was tried June 14, 1912, and resulted in a verdict and judgment for the defendant. On appeal to the Laclede circuit court a default was taken and final judgment entered for plaintiff for $80, the amount sued for, at the February term. After the adjournment of that term, the defendant filed a petition for review, which came on for hearing at the following August term, at which, on August 4, 1913, the motion was sustained by the following order:

"Now at this day this cause coming on for hearing, and it appearing to the court that at the February term, 1913, of this court, a judgment was rendered in favor of Guy R. Stanton, and against Harry Hanna, for the sum of $80 by default, the said Hanna neither appearing in person or by attorney, and the court finds that said cause was an appeal from a justice court not taken on the day of trial, that no notice of appeal was given to said Hanna, and that A. W. Curry upon whom it appears that a paper was served purporting to be a notice of appeal in said cause was not the attorney of said Hanna, and had no authority to acknowledge or waive notice of appeal, or to cause witnesses to be subpœnaed, or otherwise appear in said cause.

"The court further finds that the affidavit for an appeal did not state whether said appeal was from the merits or from an order or judgment taxing costs.

"Wherefore it is found and adjudged by the court that said judgment was entered and rendered by mistake of fact and should be set aside.

"It is therefore ordered by the court that said judgment be set aside and the cause be reinstated on the docket in all respects the same as before said judgment was rendered."

From this order an appeal was taken by the plaintiff to the Springfield Court of Appeals, where a hearing was had on November 5, 1914, and an opinion was filed by a majority of the court dismissing the appeal. Judge Sturgis of that court dissented in a separate opinion, on the ground that the decision of the majority of the court was in conflict with the rulings of this court in Bussiere's Adm'r v. Sayman, 257 Mo. 303, 165 S. W. 796, and Bank v. Kingston, 204 Mo. 687, 103 S. W. 27, and also with the decision of the Kansas City Court of Appeals in Icing Co. v. Kemper, 166 Mo. App. 613, 149 S. W. 1163. The case was accordingly certified to this court.

In the view we have taken of this case, the only question to be decided is whether an appeal lies from the order setting aside and vacating the judgment of default, and restoring the cause to the docket for trial. The proceeding for this purpose was instituted under sections 2101-2104 of the Revised Statutes of 1909, and it is not questioned that the petition complies with all the requisites of those sections.

It is suggested that these provisions were enacted with reference only to cases in which jurisdiction has been obtained by publication. In terms it applies to all cases in which the defendant shall not have appeared to the action and a final judgment by default has been entered against him; and we see nothing in the entire chapter of which it forms a part requiring a departure from that indicated by its words and their grammatical construction. Every kind of service which does not reach the consciousness of the defendant is, in a literal sense, "constructive." It may be delivered in his own home, to a member of his own family who is interested against him in the litigation, to an ignorant and thoughtless child, or if he receives it into his own hands some accident or uncontrollable circumstance may keep him from the term of court to which it is returnable. It is evident that the law was intended to prevent a miscarriage of justice in all such cases, and at the same time to protect the plaintiff by requiring that good cause shall be shown for the reinstatement of the case. If the petition is overruled, the judgment is final. To use the words of this court in Bussiere's Adm'r v. Sayman, 257 Mo. 306, 311, 165 S. W. 796, the defendant "has reached the last ditch," and an appeal lies as from every other final judgment. If the review be granted, the cause, by the provisions of the statute,...