Walton v. Hurst

• Citation: 199 S.W. 1043
• Decision Date: 08 January 1918
• Docket Number: No. 14969.,14969.
• Parties: WALTON v. HURST et al.
• Court: Missouri Court of Appeals

199 S.W. 1043

WALTON v. HURST et al.

No. 14969.

St. Louis Court of Appeals. Missouri.

January 8, 1918.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

"Not to be officially published."

Action by Stonewall J. Walton against Fred Hurst and American Surety Company of New York, a corporation. Judgment for plaintiff. From an order overruling their motion to set aside the judgment, defendants appeal. Affirmed with conditions.

J. D. & L. C. Johnson, Eustace C. Wheeler, and W. W. Cohick, all of St. Louis, for appellants. Schnurmacher & Rassieur and Walton & Senti, all of St. Louis, for respondent.

BECKER, J.

The appellants, defendants below, bring this appeal from the action of the trial court in overruling their motion to set aside a default judgment and grant them a new trial.

It appears that the plaintiff below had in another suit, in a justice court, recovered a judgment against Fred Hurst, one of the appellants in this case. An appeal was taken to the circuit court, and the appellant, American Surety Company of New York, became surety on the appeal bond. This appeal bond was in the sum of $700. Upon a hearing of the case in the circuit court, judgment was entered in the sum of $2,317.48 and costs in favor of plaintiff and against the defendant Hurst. No part of this judgment being satisfied, the judgment creditor, Stonewall J. Walton, brought suit against the judgment debtor, Fred Hurst, and his surety, American Surety Company of New York, for the penalty of the bond.

The record discloses that the defendants were duly summoned and filed an answer, and that plaintiff thereupon filed a motion to strike out certain parts of defendants' answer, which motion the court overruled. Thereupon plaintiff filed his reply. When the case was called for trial, neither of the defendants nor their attorneys appeared; whereupon a jury was waived, the cause heard and submitted to the court, and the court rendered a judgment for plaintiff for the penalty of the bond in the sum of $700, and assessed the damages at $700, together with interest, amounting to $11.55, making a total of $711.55. Within four days after said judgment was rendered, the defendants filed their motion to set aside the judgment, and for a new trial, which motion in due time was overruled, whereupon the defendants took an appeal to this court.

The motion to set aside the judgment by default, filed by the defendants below, besides setting up that they have a meritorious defense to the action, contains the following paragraph:

"Defendant [Hurst] further states that he was led to believe by the order of this court made on March 1, 1915, overruling plaintiff's motion to strike out parts of defendant's answer, that said ruling and order in effect amounted to throwing plaintiff's action out of court, and acting on that assumption defendants did not believe said case would thereafter be called for trial by this court, and the calling of said cause thereafter and said judgment by default, was a surprise to defendants."

It has often been stated that courts cannot and ought not to undertake to relieve parties from the consequences of their own negligence. When the case was called for trial, the court had but one course open to it, and that was to proceed with the trial of the case, which it did in a proper manner, and assessed damages and rendered judgment thereon. This judgment, however, was in the breast of the court during the continuance of the term at which said...