Wells v. Andrews

• Decision Date: 24 March 1896
• Parties: Wells, Appellant, v. Andrews
• Court: Missouri Supreme Court

34 S.W. 865

133 Mo. 663

Wells, Appellant, v. Andrews

Supreme Court of Missouri, First Division

March 24, 1896

Appeal from Jackson Circuit Court. -- Hon. E. L. Scarritt, Judge.

Affirmed.

A. M Allen for appellant.

(1) The affidavits in support of the motion to vacate the judgment show no diligence whatever, and the motion should have been denied. Fretwell v. Laffoon, 77 Mo. 29; Richardson v. Farmer, 36 Mo. 46. (2) The act of the attorney is that of the client. Gherke v. Jod, 59 Mo. 522. (3) Absence of counsel affords no ground for a new trial. Holloway v. Holloway, 97 Mo. 628.

Jones & Jones for respondent.

(1) The damages assessed were excessive as shown by the affidavit of Lipscomb. This was sufficient to authorize the action of the trial court in vacating the judgment. (2) Injustice was done defendant and a new trial was proper. Lockwood v. Ins Co., 47 Mo. 50; Bank v. Armstrong, 92 Mo. 265; Whitsett v. Ransom, 79 Mo. 258; Edmiller v. Kump, 61 Mo. 340.

OPINION

Macfarlane, J.

The suit is ejectment to recover a strip of land twenty-two feet wide off the west end of the south half of the northwest quarter of section 20, township 47, range 33, in Jackson county. The petition is in the usual form. The answer contains a general denial and certain special defenses which need not be mentioned. A reply put in issue the new matter contained in the answer.

On the thirteenth day of October, 1893, the cause was called for trial, plaintiff appearing thereto. Defendant did not appear, either in person or by counsel. Plaintiff introduced evidence upon the issues and judgment was rendered in his favor for the possession of the land and for damages, rents, and profits.

Afterward on the seventeenth of October, and at the same term of court, defendant filed a motion to set aside the judgment and for a new trial for these, with other reasons:

"Fourth. The amount of the damage and monthly rents and profits, as fixed by the judgment, is excessive and unreasonable.

"Fifth. The defendant says that he purchased the land in controversy from one J. H. Lipscomb; that said Lipscomb made a warranty deed to said defendant for said land; that at the time suit was instituted by said plaintiff, defendant asked said Lipscomb to defend said suit, which said Lipscomb agreed to do; that said defendant was advised by said Lipscomb that he need not employ counsel to represent him in said suit; that, relying upon said Lipscomb to make a proper defense he did not employ counsel and was not represented; that said Lipscomb failed and neglected to make the defense he could have made and agreed to make, and otherwise neglected and refused to comply with his agreement; that by reason of said Lipscomb's failure to make the proper defense, defendant is damaged by the alleged and excessive judgment rendered herein."

A number of affidavits were filed, both in support of and against this motion. Some of these affidavits tended to prove that the damage assessed was excessive.

The affidavit of J. H. Lipscomb shows that affiant sold and conveyed the land to defendant by warranty deed; that when this suit was commenced defendant Andrews notified him thereof and he agreed to make the defense. The affiant then states these facts:

"That at the institution of this suit, the defendant, Andrews asked this affiant if it was necessary for the defendant Andrews, to employ counsel to defend this suit. Affiant states that he advised Andrews that he need go to no expense whatever in the matter, but that he, affiant, would defend said suit at no expense to said Andrews, and without any trouble or attention from him. That in pursuance of the agreement with Andrews, said affiant, at his own request and instance, procured the law firm of Jones & Jones to act nominally for said Andrews, in said suit, at the same time telling said law firm that they need give the case no professional attention whatever. Affiant further says that he knows of his own knowledge, that defendant Andrews relied solely upon his agreement with said Lipscomb for his defense in said suit. That said Andrews did not employ Lipscomb as his counsel or attorney, but solely relied upon him and his interest in the termination of...