Tonkel v. Williams

• Decision Date: 18 April 1927
• Docket Number: 26417
• Citation: 112 So. 368,146 Miss. 842
• Court: Mississippi Supreme Court
• Parties: TONKEL v. WILLIAMS. [*]

112 So. 368

146 Miss. 842

TONKEL v. WILLIAMS. ^[*]

No. 26417

Supreme Court of Mississippi

April 18, 1927

Division A

1 JUDGMENT. Court should not summarily deny hearing because defendant is caught unawares through attorney's inadvertence and no harm could result from, trial on merits.

Where no possible harm could come to plaintiff by having trial on merits, court should not summarily deny a hearing simply because defendant is caught unawares because of inadvertence or even willful neglect of attorney, where case can be tried and disposed of in ordinary way at that term of court.

2 JUDGMENT. Defendant presenting plea before default judgment is entitled to trial on merits, where failure to timely present plea was through attorney's inadvertence (Hemingway's Code, section 733).

Where defendant failed to file plea through inadvertence of attorney, and attorney was present at sounding of docket and promptly presented plea before any judgment by default was taken, and permitting plea to be filed would have caused only a slight delay, if any, defendant should have been granted a trial on the merits notwithstanding Code 1906, section 1013 (Hemingway's Code, section 733), which is not to be construed to give undue advantage to plaintiff in such cases.

HON. WM. A. ALCORN, JR., Judge.

APPEAL from circuit court of Bolivar county, Second district HON. WM. A. ALCORN, JR., Judge.

Suit by Mack Williams against F. B. Tonkel. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Reversed and remanded.

Shands, Elmore & Causey, for appellant.

The failure to file the plea on behalf of the defendant was through inadvertence and oversight on the part of the attorney representing her. Under such circumstances the court should have permitted the defendant to file her plea and its failure to do so was an abuse of judicial discretion. Porter v. Johnson, 2 How. 736; Fore v. Folsom, 4 How. 282; Southern Express Co. v. Hunt, 54 Miss. 664; City of Meridian v. Trussell, 52 Miss. 711; Surety Ins. Co. v. Treadwell, 113 Miss. 197.

The above cases were appealed from judgments by default at law. Substantially the same rules obtain with reference to the setting aside of decrees pro confesso in chancery. Yost v. Alderson, 58 Miss. 40, involving the opening up of a decree pro confesso. In Field v. Junkin, 99 So. 834 (Miss.), the court applied the same rule announced in Yost v. Alderson, supra, in favor of an appellant who was negligent.

In the case at bar, leave to plead was requested as quickly as could be done under the circumstances. The attorney for the plaintiff did not make even a formal objection to the filing of the plea, leaving the matter entirely to the court and to defendant's counsel. No surprise was claimed, no claim was made that any delay would result.

We submit that the lower court in its anxiety to handle the docket with dispatch misapprehended the just rights of the defendant under the circumstances and, therefore, the case should be reversed so that a trial can be had on the merits.

J. H. Price, for appellee.

If it be assumed that the defendant's application for leave to file his plea after the lapse of two hundred seventeen days was addressed to the discretion of the trial judge, does the record disclose an abuse of that discretion? There is no affidavit by the defendant. The defendant is the party complaining. The court below weighed the evidence. His findings of fact are conclusive on this court. Certainly, you cannot say from the evidence that the action of the trial judge cannot be justified; and since this court enters upon this investigation with a presumption that the trial court's ruling was correct, it will be upheld if it can be done upon any reasonable hypothesis whatever.

Since plaintiff's attorney was granted no quarter on motion to file declaration, he would hardly be expected to yield any to defendant's counsel to plead two hundred seventeen days late. We find no cause to complain of the several decisions of this court, on the facts, records and circumstances and the law pertaining to the several cases cited in appellant's brief, but we insist that under this special statute on pleading and the facts in this case that those cases are not applicable and that the lower court on this record should be upheld.

Argued orally by H. H. Elmore, for appellant.

OPINION

MCGOWEN, J.

This suit originated in the chancery court, and was based on a claim that the complainant, Mack Williams, had paid defendant, Tonkel, one thousand one hundred ninety-six dollars and seventy cents, which was borrowed money; that the complainant had paid a rate of interest greater than twenty per cent. per annum; and that the above sum was principal and interest, which he was entitled to recover under the usury laws of the state.

Mrs. Tonkel filed a demurrer to the bill; the chancellor sustained the demurrer and ordered the cause transferred to the circuit court, which order was entered on February 8, 1926.

The circuit court convened April 5, 1926, and although the complainant was required under section 733, Hemingway's Code, to file his declaration in the circuit court thirty days after the removal of the cause, he had not done so, but leave of the court was granted to plaintiff to file his declaration, which was done on that day. Defendant was allowed sixty days as of that April term within which to plead. When the November term of the court convened no pleas had been filed, and on November 8, 1926, the first day of the term of court, the presiding judge proceeded to sound the civil docket, not then calling cases for trial, but for the purpose of setting cases for trial during that term, it being a four weeks' term in that county. It appears that the docket had not been set under the rules of practice adopted by the commission of circuit judges and chancellors, but was being set on the first day of the term. The evidence shows that twenty-eight cases had been called and announced ready for trial when this case was reached, and, it then being made to appear to the court that no plea was on file, the plaintiff's attorney asked for a judgment by default; thereupon the attorney for the defendant asked leave of the court to file a plea for defendant, and stated to the court that it was through oversight and inadvertence on his part that the plea had not been filed. The court refused this request. Defendant's counsel appealed for grace to the attorney on the other side, for leave to file the plea, and he replied, "That is up to the court."

The sounding of the docket continued until the noon recess, but upon reconvening after said recess the attorney for the defendant presented the plea of defendant, which he proposed and asked leave of the court to file. This plea is in the record, and, omitting the caption and signature of counsel, contains less than fifty words.

The affidavit of counsel setting up the facts and showing meritorious defense was filed along with the motion and plea, all of which was overruled on the same day. There still had been no judgment. Subsequent to the overruling of the motion plaintiff's attorney presented judgment by default against defendant, which was ordered entered by the court and which was for the sum of one thousand two hundred eighty-two dollars and sixty cents.

Later in the term the defendant made a motion to set aside the judgment by default, filed other affidavits reaffirming his defense and showing that the defendant had relied upon counsel to file the pleas. Mrs. Tonkel's husband and agent made affidavit for her that he was attending to the case for his wife and did not know counsel had not filed the plea. The motion to set aside the judgment was overruled after the taking of some oral proof.

It is apparent that defendant's counsel had, by inadvertence,...