Taff v. Westerman

• Decision Date: 31 January 1867
• Citation: 39 Mo. 413
• Parties: FREDERICK TAFF, Defendant in Error, v. THEODORE WESTERMAN, Plaintiff in Error.
• Court: Missouri Supreme Court

39 Mo. 413

FREDERICK TAFF, Defendant in Error,

v.THEODORE WESTERMAN, Plaintiff in Error.

Supreme Court of Missouri.

January Term, 1867.

Error to Osage Circuit Court.

J. E. Belch, for plaintiff in error.

McCord and Ewing & Smith, for defendant in error.

FAGG, Judge, delivered the opinion of the court.

The suit was instituted in the Osage Circuit Court upon a promissory note. The defendant below--plaintiff in error here--appeared in obedience to the summons, and obtained leave of the court to file his answer to the petition sixty days before the next term. It was not filed within the time specified, but, as the record shows, was filed by leave of court on the second day of the said next term. On the day following, a motion was filed by the plaintiff asking that the answer be stricken out, for the reason that the leave as given at the former term had not been complied with. On the fifth day of the term, an order was entered by the clerk upon his book of minutes continuing the case until the next term of the court, for want of time to try it. On the evening of the next day, as stated in the bill of exceptions--that being the last day of the term--the order of continuance was set aside, and the motion to strike out the answer sustained by the court. The defendant, Westerman, being wholly undefended, a judgment was rendered against him for the amount claimed.

It is very clear, that as to matters of this sort the exercise of a sound discretion upon the part of the court is to be permitted; but to enable this court to determine whether the ruling of the court below was erroneous or not, the reasons upon which it is based should be made to appear. In the case of Marsh v. Morse, 18 Mo. 477, Judge Scott holds this language: “It is obvious that the vacating of a continuance and ordering a trial of the cause may produce surprise, and operate seriously to the prejudice of a party whose cause has been continued. A court would hardly be warranted in taking such a course without strong reasons.”

Looking to the answer as set out in the record and finding a meritorious defence stated, it seems to be a case of some hardship to the defendant, and without a statement of the reasons for vacating the order of continuance it would be impossible to say that the discretion of the court had been properly exercised. There might have been the very strongest reasons for sustaining the motion to strike out the answer after leave had been given to file it on the second day of the term,...