Steyermark v. Landau

• Decision Date: 07 January 1907
• Citation: 121 Mo. App. 402,99 S.W. 41
• Parties: STEYERMARK v. LANDAU et al.
• Court: Missouri Court of Appeals

99 S.W. 41

121 Mo. App. 402

STEYERMARK v. LANDAU et al.

St. Louis Court of Appeals. Missouri.

January 7, 1907.

Rehearing Denied January 22, 1907.

1. JUSTICES OF THE PEACE—DEFAULT JUDGMENTS—RIGHT TO SET ASIDE—FRAUD.

Equitable relief will be granted against a default judgment in justice court obtained through a breach of an agreement by plaintiffs' attorney to notify defendants of the resetting of the case after continuance obtained at plaintiffs' request; negligence barring such relief being not shown by defendants' failure to ascertain from the justice's docket when the case was set.

2. APPEAL — REVIEW — CONCLUSIVENESS OF FINDING.

The finding of a trial court, based on conflicting oral testimony, will not be disturbed on appeal.

3. JUSTICES OF THE PEACE—DEFAULT JUDGMENT—SETTING ASIDE—DEFENSE.

Equitable relief will not be granted against a default judgment in justice court obtained through a breach of an agreement by plaintiffs' attorney to notify defendants of the resetting of the case, in the absence of a showing that defendants have a valid defense.

Appeal from St. Louis Circuit Court; Jesse A. McDonald, Judge.

Suit by M. Benj. Steyermark and another against Alexander Landau and another. From a judgment for defendants, plaintiffs appeal. Affirmed.

R. L. & John Johnston, for appellants. Jno. D. Rippey and Thos. P. Bashaw, for respondents.

GOODE, J.

On May 18, 1904, the defendants in this suit recovered a judgment by default against plaintiffs before a justice of the peace in the city of St. Louis for $575. The present proceeding is in equity to have said judgment before the justice set aside, its collection restrained, and for a hearing of the case by the justice on the merits. The ground on which this relief is sought is that the judgment was procured by fraud and deceit, and in violation of an express stipulation made by the attorney for defendants with plaintiffs and their attorney. The facts are that the cause was set for trial before the justice, in the first instance, on April 18, 1904. The attorney for defendants (plaintiffs in the other action) requested a continuance of the cause of the attorney for the Steyermarks. He would not agree to a continuance without the consent of his clients, and referred defendants' attorney to them. Said attorney saw Steyermark, and after a parley between the two an agreement was reached that the cause before the justice should be continued from April 18th until after Mr. Steyermark, who was about to leave St. Louis for several weeks, had returned. As to this agreement the parties concur. But Mr. Steyermark and his attorney testified to another stipulation, to wit, that after Steyermark had returned defendants' attorney should have the cause set down for trial and notify plaintiffs, or their attorney, of the date. Defendants' attorney testified to the contrary, and that there was no understanding he...