Tucker v. St. Louis, Kansas City & Northern Ry. Co.

• Court: United States State Supreme Court of Missouri
• Writing for the Court: VORIES
• Citation: 54 Mo. 177
• Decision Date: 31 October 1873
• Parties: P. H. TUCKER, Respondent, v. ST. LOUIS, KANSAS CITY AND NORTHERN RAILWAY CO., Appellant.

54 Mo. 177

P. H. TUCKER, Respondent,
v.
ST. LOUIS, KANSAS CITY AND NORTHERN RAILWAY CO., Appellant.

Supreme Court of Missouri.

October Term, 1873.

Appeal from Montgomery Circuit Court.

John M. Woodson, for Appellant.

I. The court exercised its discretion unsoundly in its

[54 Mo. 178]

refusal to set aside the judgment by default, and appellant has suffered positive injustice thereby. (Nordmanser vs. Hitchcock, 40 Mo., 178; Kribben vs. Eckelkamp, 34 Mo., 480 Florez vs. Uhrig's, Adm'r, 35 Mo., 519; Frazier vs. Bishop, 29 Mo., 447.)

A. H. Buckner, for Respondent.

I. The judge has nothing whatever to do with the setting of the docket; that is expressly given to the clerk.

II. Defendant's attorney made no effort to get correct information from the proper source as to the time when the case was set. It is either a mistake as to the law regulating the duties of clerks, or negligence on the part of defendant's attorney, or both combined, that is shown by the affidavits and motion of defendant, and in neither case will this court interfere with the action of the court below. (Nordmandser vs. Hitchcock, 40 Mo., 178; Steigers vs. Darby, 8 Mo., 679; Jacob vs. McLean, 24 Mo., 40.)

III. But there is in fact, no good defense shown to the action. The affidavits state neither evidence nor facts, from which this court can say that plaintiff was not employed to attend to the injured man.

VORIES, Judge, delivered the opinion of the court.

This action was brought by the respondent against the appellant before a justice of the peace on the following account:

“St. Louis, Kansas City and Northern Railway Company, in account with Dr. P. H. Tucker. For surgical and medical treatment of Jerome Dollihan, at the hotel in High Hill, Montgomery county, Missouri, as wounded on the sixth day of March, 1872, the cars running over and fracturing his leg, so that amputation was necessary.

March 6th, to March____, 1872,

To surgical and medical treatment of Jerome Dollihan, $75.00.”

A trial was had before the justice, where the plaintiff recovered a judgment for the full amount of his account.

[54 Mo. 179]

From this judgment the defendant appealed to the Montgomery Circuit Court. On the 10th day of November, 1872, the following entry appears in the cause, on the records of the Montgomery Circuit Court:

“Now at this day, appears the parties by their respective attorneys, and by consent this cause is continued to the December adjourned term (4th day, No. 162.)”

Atterwards, on the 18th day of December, at the December adjourned term, and on the 3d day thereof, the case was called for trial, the plaintiff appearing, but the defendant making no appearance. The case was tried by the court, and a judgment rendered against the defendant for seventy-five dollars.

On the next day, the same being the 4th day of the December adjourned term, the defendant appeared and filed its motion for a new trial, and set forth, as the grounds upon which it relied for a new trial, among other things, the following:

Because the verdict and judgment were contrary to the evidence and...