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

• Decision Date: 31 October 1873
• Parties: P. H. TUCKER, Respondent, v. ST. LOUIS, KANSAS CITY AND NORTHERN RAILWAY CO., Appellant.
• Court: Missouri Supreme Court

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 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. 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 the law, and because at the regular October term of the court the cause was by the consent of the parties, and by the order of the court, specially set for the 19th day of December, 1872, and on the 4th day of the said December adjourned term; whereas, the said cause was called for trial and a verdict and judgment rendered therein on a day prior thereto, that is to say, on the 18th day of December, 1872, the same being the third day of said adjourned term of said court; which trial was had on said day without the knowledge or consent of the defendant or its attorney or agents, and in their absence; that defendant had a good defense to the action, and was present on the 4th day of said adjourned term, the day the cause was set for trial by the agreement of the parties, ready for the trial of said cause.

With this motion defendant filed affidavits in support thereof. Afterwards said motion was heard, and overruled, by the court, and the defendant at the time excepted, and appealed to this court.

This court will not interfere with the discretion of inferior courts in refusing to grant new trials, unless a strong case is made showing an improper exercise of discretion to the prejudice of the party complaining. (Nordmanser vs. Hitchcock, 40 Mo., 178; Kribben vs. Eckelkamp, 34 Mo., 480.)

In the case under consideration it is shown by the affidavits, filed with the motion for a new trial, that at the regular October term of the Montgomery Circuit Court, the case was continued by the consent of both parties, and by the order of the court specially set for hearing on the 19th day of December, 1872, and that the defendant and its agents and attorneys had received no notice of any change having been made in reference to the time for the hearing of the cause, until the 19th day of December, 1872, when the defendant's attorney appeared in court for the purpose of trying the cause, when he was informed that the case had been tried in his absence on the day before, and judgment rendered against the defendant. It further appeared, that the plaintiff's attorney had...