Webb v. Coonce

• Citation: 11 Mo. 9
• Parties: WEBB v. COONCE.
• Decision Date: 31 October 1847
• Court: United States State Supreme Court of Missouri

11 Mo. 9

WEBB

v.COONCE.

Supreme Court of Missouri.

October Term, 1847.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

HOCKADAY, for Appellant

TODD, for Appellee.

1. The court did not err in refusing to set aside the judgment by default. 1st. Because the affidavits of Hockaday do not show proper diligence. 4 Mo. R. 557; 6 Mo. R. 254; 7 Mo. R. 6, 25. 2nd. Because the affidavits are not by Webb, and no reason or cause is given why not, as required. 2 Cowen, 581.3rd. Because the affidavits do not show a defense to the merits, but only that ““Webb has a valid defense,” which may be true for many reasons, without being a defense to the merits or a meritorious defense, as required in 7 Mo. R. 25. It might be statute of limitations or a plea in abatement, or something else, which are not meritorious defenses. 1 Dunlap's Pr. 380-3; 3 Johns. 259; 5 Taunt. 856.

2. The motion to set aside the judgment by default, was disposed of at a proper time, and nothing appears showing the contrary. The bill of exceptions shows that said motion was heard and disposed of at the calling of the case for an inquiry and before going into the inquiry, and that the case was called for an inquiry according to the order and practice of the court.

3. The court did not err in refusing to give the instruction asked for by the defendant on the inquiry; for the declaration sets forth a special agreement for labor and services, and what was equivalent to a performance, all which, by not pleading, the defendant admitted to be true. The declaration, then, was evidence enough, at least prima facie, to prove the plaintiff entitled to the same sum, that proof of an actual performance on trial of an issue made, would. 7 Mo. R. 94; 3 Mo. R. 230; 4 Mo. R. 41.

4. The court did not err in refusing to grant a new trial or inquiry. 1st. Because the inquiry was had at the proper time and according to the practice of the court, and the order made in this case as authorized by § 42, p. 815, of Rev. Code of 1845. 2nd. Because the affidavit shows no good cause--shows no diligence--does not pretend that the defendant had any evidence to offer. 3rd. The damages were not excessive, being merely the compensation of the contract.

NAPTON, J.

This was an action of assumpsit. The declaration contained two counts. The first count set forth, in substance, that it was agreed between Coonce and Webb, that Coonce would, by a specified time, at Webb s landing, in Lafayee county, take on his boat, the Radnor, about 335 bales of hemp, weighing at least sixty tons, and transport the same to St. Louis, at the price of $4 per ton; that Coonce reached the landing at the time agreed on, ready and willing to take the hemp, but Webb refused to let him have it. The second count, reciting that Coonce was engaged in the carrying trade between St. Louis and divers places on the Missouri river, with his steamboat Radnor, averred that Webb had hemp at Webb's landing, on the river, to the amount of 335 bales or 60 tons, which he wished to have transported to St. Louis, and that thereupon it was agreed between the parties that Coonce should, by a day specified, come for it with his boat and transport it to St. Louis, for which Webb agreed to pay $4 per ton; that Coonce called for it at the time with his said boat and demanded the hemp, and Webb refused to let him have it, to his damage $500.

At the return term of the writ (which had been duly served), the defendant failed to plead, and a judgment by default was entered, and a writ of inqiry for the same term was awarded. The defendant, by his attorney, moved to set aside the judgment by default, and filed two affidavits to sustain the motion. The case was called on the day set for the writ of inquiry, and the motion to set aside the judgment was overruled and the inquiry had. The plaintiff read the declaration, and no other evidence was given. The defendant, by his counsel, asked the following instruction: That the plaintiff having made no proof, the jury can find only nominal damages for the plaintiff,” which instruction the court refused, and the defendant excepted. The jury found a verdict for $240, and a motion for a new trial was made, because of the refusal of instructions, and for various other reasons specified. This motion was also accompanied by affidavit of counsel, the object of which was to explain his absence on the trial of the writ of inquiry. The motion was overruled and exceptions taken.^(a)

The affidavits for the purpose of setting aside the judgment by default, were made by the counsel for Webb. These affidavits stated in substance that the affiant had been employed by an agent of Webb, some three months before, to defend a suit commenced (as he understood from the...