Vaughn v. Ripley
| Decision Date | 03 April 1967 |
| Docket Number | No. 24610,24610 |
| Citation | 416 S.W.2d 226 |
| Parties | Robert E. VAUGHN, Appellant, v. James W. RIPLEY, Respondent. |
| Court | Missouri Court of Appeals |
Hensley, Rahm & Braton, Warrensburg, Harold L. Caskey, Butler, for appellant.
E. J. Murphy, Butler, Felix V. Gross, Pleasant Hill, for respondent.
Plaintiff sued on an account and defendant pleaded payment. Thereafter, the case enjoyed a respite from professional attention for approximately six years. Then it was ordered tried and counsel for both sides were notified of the setting. Defendant did not appear on the appointed day, but plaintiff did, and, at a hearing before the court, took judgment for $2,956.62. A few days later, on learning of the result, defendant moved to set aside the judgment, alleging that he had a meritorious defense which he had been prevented from asserting by a combination of circumstances that were detailed in the motion. Plaintiff responded with a spirited denial and the dispute, more than a little tinged with rancor on the part of the contending attorneys, was submitted to the court. At the conclusion of the hearing the court took the matter under advisement, announcing that a decision would be reached the following day. On the following day and within the 30-day period prescribed by Civil Rule 75.01, V.A.M.R., the court tactfully overruled the pending motion but entered an order, on the court's own motion, setting aside the judgment and directing a new trial for the assigned reason that 'defendant has been deprived of his day in court.' Plaintiff appeals. The only question is whether the court acted beyond the permissible limits of judicial discretion under the circumstances shown.
The evidence at the hearing was to this effect: The attorney who had filed the suit for plaintiff and the attorney who had represented defendant during its pendency, both being able and reputable members of the bar of their neighboring communities, had been acquainted with each other on a first-name basis for a long time. Over the years they had come to deal with each other in a friendly and informal manner, with every indication of mutual esteem . Two or three days before the scheduled trial date, in a telephone conversation between them, defendant's attorney told plaintiff's attorney that it would be inconvenient for him to take up the case on the date set, and asked him to agree to a continuance. Plaintiff's attorney countered with an offer to settle the case for $500.00, and, when that was disparaged, declined the request for a continuance; but not so emphatically, it seems, as to preclude the possibility of its being reconsidered if renewed for a sounder reason. With that idea in mind, apparently, defendant's attorney called his client and learned from him that because of an emergency at the bank where he was employed it would not be possible for him to appear on the date set without real hardship. Counsel then called the trial judge, explained the situation, inquired if another trial date in the near future was available, and was informed that a six day later date was open. Armed with that information, he called plaintiff's attorney again, made a new request, and was again refused. Now it may very well be that a six day postponement of a case that has lain dormant on the docket for nearly six years by mutual consent is not an extravagant request to make, especially for good reason, and it is understandable that counsel might have looked forward with confidence to its being granted. But he took an even more sanguine view. He assumed that the refusal of his request was simply a good-humored jest and that plaintiff's attorney would not actually call the case up until the latter date. Acting on that assumption, without any formal application for a continuance and without further communication with his adversary, he notified his client that a post-ponement had...
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Donnell v. Vigus Quarries, Inc.
...well within the 30 day period prescribed in Civil Rule 75.01, V.A.M.R., the court 'tactfully overruled' (as expressed in Vaughn v. Ripley, Mo.App., 416 S.W.2d 226, 227) the defendants' motion and entered an order, on the court's own motion, setting aside the judgment and decree and granting......
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State ex rel. Landmark KCI Bank v. Stuckey
...Bank v. Cherokee Investment Company, 642 S.W.2d 122 (Mo.App.1982); Lester v. Dyer, 518 S.W.2d 213 (Mo.App.1974); Vaughn v. Ripley, 416 S.W.2d 226, 228-29 (Mo.App.1967). The error is of "jurisdictional" dimensions, made at the very threshold of the case. Since there is another defendant, the......
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Lambert Bros., Inc. v. Tri City Const. Co.
...'for good cause' as, under prior practice, it did during the judgment term. Kollmeyer, supra, 408 S.W.2d at 381(15). In Vaughn v. Ripley, 416 S.W.2d 226 (Mo.App.1967), referring to the 'good cause' language of Rule 75.01, V.A.M.R., the court said at page 228: 'Error implies fault. 'Good cau......
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Dennis v. Jenkins
...have we found any authority to that effect. Plaintiff directs our attention to Mayo v. Lasater, Mo.App., 312 S.W.2d 601 and Vaughn v. Ripley, Mo.App., 416 S.W.2d 226, as cases wherein appeals from orders vacating default judgments were not dismissed but instead were entertained and decided ......