Welch v. Mastin
| Decision Date | 02 February 1903 |
| Parties | ADA M. WELCH, Executrix, etc., Respondent, v. JULIA MASTIN et al., Appellants |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. James Gibson, Judge.
AFFIRMED.
Judgment affirmed.
R. H Field for appellant.
(1) The court should not assume the existence, nor take judicial notice, of an ordinance authorizing the issuance of these taxbills in four installments. Such an ordinance must be pleaded and proven. St. Louis v. Roche, 128 Mo. 544. (2) The petition in all cases, is required by the code in this State to state facts sufficient to constitute a cause of action. It would seem to follow from this provision that if it is to be considered sufficient to plead the contents of the taxbill in the petition, then the taxbill should recite facts which show on its face that it is an authorized charge upon the land against which it has been issued. The only other view, at all consistent with the code requirement would be to require the petition to state facts sufficient to constitute a cause of action upon the taxbill, regardless of the omission of recitals in the taxbills. Upon either view the petition in this case is sufficient and the judgment thereon should be reversed, because neither count of the petition states the time of maturity of the first, second or third installments of the special taxbills, also because neither count of the petition contains any allegation that the common council authorized the special taxbills sued on to be issued and made payable in four installments. Linneus v. Locke, 25 Mo.App. 407; Galbreath v. Newton, 30 Mo.App. 380; Trenton v. Coyle, 107 Mo. 197; St. Louis v. Gleason, 89 Mo. 67; Jerico Springs v. Phelps, 39 Mo.App. 289; Himmelman v. Davis, 35 Cal. 441; Shearer v. Corbin, 1 McCreary, U.S.C. Ct. 306. (3) On any view of the facts above stated, the trial court erred in not sustaining appellants' motion to set aside its finding and judgment, and for which error, independent of the showing as to the merits of the case, the judgment should be reversed. Schaffer v. Siegel, 7 Mo.App. 542; Maloney v. Hunt, 29 Mo.App. 379. (4) The apparent or real negligence of an attorney, especially in the light of the facts and circumstances shown in this case, should not deprive defendants of their meritorious defense in this case. Stout v. Lewis, 11 Mo. 438; O'Fallon v. Davis, 38 Mo. 269. (5) The right to select as paving material between asphalt, wood, stone and brick, a conceded right, is one thing; a municipal regulation that the one selected shall be obtained from a particular place, or from a particular person only, is a very different thing. "The law recognizes in no one a right to create or maintain a monopoly." Keen v. Mayor, 101 Ga. 592. See more particularly: Construction Co. v. Von Versen, 81 Mo.App. 519; City of Atlanta v. Stein, 111 Ga. 789; Town of Crowley v. West, 52 La. Ann. 526; City of Chicago v. Rumpf, 45 Ills. 90; State ex rel. v. Warden of Prisons, 157 N.Y. 126; Dillon on Munic. Corp. (4 Ed.), secs. 322, 362, 694 and 695; Sayre Borough v. Phillips, 148 Pa. St. 482; Brooks v. Cooper, 50 N. J. L. 761; Brimmer v. Rebman, 138 U.S. 78; Voight v. Wright, 141 U.S. 62; Packing Co. v. Mayor, 60 F. 779; Greensboro v. Eprenseich, 80 Ala. 579; Sayre Borough v. Phillips, 148 Pa. St. 483; Ex parte Keiffer, 40 F. 399; Spellman v. New Orleans, 45 F. 3; Breman v. Titusville, 155 U.S. 301.
Karnes, New, Hall & Krauthoff for respondent.
(1) The case was set regularly at foot of docket, was afterwards regularly noted for trial on a designated day, and was properly heard and determined on that day. (2) A decision by the trial court, on a motion to open a judgment by default upon a question of fact where there is conflicting evidence, "will rarely or never be reversed on appeal." 6 Ency. of Pl. and Pr., 203; Poirier v. Gravel, 88 Cal. 79; s. c., 26 P. 962; Swanstrom v. Mowin, 38 Minn. 359; 27 N.W. 455; Flanigan v. Duncan, 47 Minn. 359; 47 N.W. 981; Palmer v. Harris, 98 Ill. 507. (3) The Mastins had no legal right to have the judgment by default set aside. Their application was addressed to the discretion of the court. This court will not interfere unless there has been a clear abuse of that discretion, and this there was not. 6 Ency. of Pl. and Pr., 200; Kibben v. Eckelkamp, 34 Mo. 480; Carr v. School District, 42 Mo.App. 156; Jacob v. McLean, 24 Mo. 40; Florez v. Uhrig, 35 Mo. 517; Robyn v. Publishing Co., 127 Mo. 385. (4) The negligence of the defendants' attorney is his own negligence. (5) The question as to the sufficiency of the petition is not before this court on this appeal. Exley v. Berryhill, 37 Minn. 182, 33 N.W. 567; 6 Ency. of Pl. and Pr., 237, and cases cited. (6) The petition states a cause of action.
Plaintiff sued defendants to enforce the lien of two special taxbills issued against property described in the petition. There was a judgment by default. Defendants thereafter appeared and moved to set aside the default. The trial court overruled the motion and defendants have appealed from that order.
It appears that after answer filed by Mr. Jones, defendants' attorney, the case was put at the foot of the docket to be tried on July 9, 1901. On that day, defendants not appearing, judgment by default was entered. Defendants state in their motion to set aside this default that they were not notified of its being set for trial on a day certain and that the setting of the case "for hearing on July 9, 1901, was overlooked by their attorney." And that "before July 9, 1901, the day on which the finding and judgment was entered in the above cause, these defendants had retained R. H. Field, esquire, as their attorney in this and numerous other similar cases pending in this court against these defendants, with an understanding that a list of all such cases was to be furnished by said T. A. F. Jones, their attorney of record, to said R. H. Field; that because of the neglect or failure of their former attorney, T. A. F. Jones, to notify these defendants or said R. H. Field of the pendency and state of the docket for trial of the above-entitled cause as one of the said cases in which the said R. H. Field was retained by these defendants, as advised by these defendants to do, and as expected by them and the said R. H. Field that the said T. A. F. Jones would do, and relying thereon, these defendants and their present attorney, R. H. Field, had no knowledge or information of the pendency of this cause for trial at the present term of the court."
It thus clearly appears from the motion that the cause of defendants' failure to appear was the neglect of their attorney. Ordinarily the neglect of the attorney (not reaching the point of collusion, or the like, of which there is no pretense in this case) is the neglect of the client himself; and he takes the consequence as though he had been the actor. Gehrke v. Jod, 59 Mo. 522; Biebinger v. Taylor, 64 Mo. 63; Robyn v. Publishing Co., 127 Mo. 385, 30 S.W. 130; Tower v. Ellsworth, 112 Ga. 460, 37 S.E. 736.
Setting aside a judgment by default is a matter of discretion with the trial court. Matters may be known, or be made to appear, to the trial court which appeal to its sense of justice and fair play and cause it to sustain or deny a motion to set aside a default. Its discretion in that behalf will never be interfered with unless it be clearly shown that there has been an abuse of that discretion. No such showing is made here. The evidence heard by no means shows such abuse. Indeed, for aught that appears to the contrary, the court would have been justified in overruling the motion upon the statements contained therein alone. For, as already said, it merely discloses a neglect of the attorney of record.
Defendant's motion contains a statement that the ordinance authorizing the work and taxbills was void for the reason that it created a monopoly "in favor of Diamond Brick Company by requiring the brick for the paving to be got of that company." Whether this allegation was intended as a cause for setting aside the default, or merely as an inducement disclosing that defendants had a meritorious defense if allowed to show it, does not appear. It was proper enough for the defendants to allege that they had a good and meritorious defense as an inducement to...
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