Whitledge v. Anderson Air Activities, 44315
| Decision Date | 14 February 1955 |
| Docket Number | No. 44315,No. 1,44315,1 |
| Citation | 276 S.W.2d 114 |
| Parties | James A. WHITLEDGE, Plaintiff-Respondent, v. ANDERSON AIR ACTIVITIES, Inc., Defendant-Appellant |
| Court | Missouri Supreme Court |
Veryl L. Riddle, Riddle & Baker, Malden, McHaney & McHaney, Kennett, for appellant.
Dalton, Treasure & Dalton, John M. Dalton, Harold B. Treasure, John Hall Dalton, Kennett, for respondent.
VAN OSDOL, Commissioner.
This is an appeal by Anderson Air Activities, Inc., defendant, from an order overruling defendant's motion to set aside a default judgment for $9,000 in plaintiff's action for personal injuries.
Our primary question is whether the trial court, in overruling defendant-appellant's motion, was acting within its sound judicial discretion.
The action was originally instituted May 11, 1953, against one Harry Raymond Gourley as sole defendant. Plaintiff, James A. Whitledge, alleged his injuries, sustained April 26, 1953, were due to the negligent conduct of defendant Gourley in the operation of a motor vehicle. Defendant Gourley filed an answer denying certain allegations of the petition, and alleging plaintiff's contributory negligence and the 'sole cause' negligence of one Pardon.
October 10, 1953, plaintiff filed his first amended petition adding defendant-appellant, Anderson Air Activities, Inc. (hereinafter sometimes referred to as 'Anderson'), as an additional party defendant. The same specific negligence was alleged as in the original petition, and it was also alleged that defendant Gourley was, at the time and place of plaintiff's injury, acting as the agent and employee of Anderson. Summons was issued, and served on Anderson, November 14, 1953.
January 21, 1954, Anderson was in default. On that day, plaintiff dismissed (without prejudice) his action as against defendant Gourley. The trial court heard evidence introduced by plaintiff, and entered judgment for plaintiff and against defendant Anderson for $9,000 as stated.
January 30, 1954, defendant-appellant Anderson filed motions denominated 'Motion to Set Aside Judgment' and 'Amended Motion to Set Aside Judgment and Order New Trial'; and on February 1, 1954, defendant filed 'Motion to Set Aside Judgment and Dismiss', 'Second Amended Motion to Set Aside Judgment', and 'Second Amended Motion for New Trial.'
February 20, 1954, evidence was introduced in support of Anderson's 'Motion to Set Aside Judgment and Dismiss', 'Second Amended Motion to Set Aside Judgment' and 'Second Amended Motion for New Trial.' The pertinent paragraphs of these motions were to the effect that the trial court was without jurisdiction of the person of defendant Anderson in that plaintiff's amended petition was filed and Anderson added as a party defendant without order of court; that defendant Anderson had a good defense to the plaintiff's claim; that defendant Anderson was without negligence in being in default; and that plaintiff would not be prejudiced by an order setting aside the judgment. Defendant Anderson moved the court 'to set aside the judgment * * * and to grant defendant leave to file an answer herein, and that said cause may be set for trial upon the merits.'
March 8, 1954, the trial court by order overruled defendant Anderson's after-trial motions, in which order the trial court found facts, among others, as follows,
'1. Defendant was duly served with summons herein on November 14th, 1953, but did not answer or file any pleading prior to January 21st, 1954, on which date a judgment was rendered for the plaintiff. * * *
'4. Defendant has a defense to plaintiff's claim which would justify the submission of the evidence to a jury upon a trial. * * *
'7. Neither plaintiff nor plaintiff's attorneys agreed to a continuance of this case to the February Term, 1954. * * *
At the outset we are confronted with plaintiff-respondent's motion to amend the transcript to include defendant Anderson's 'Motion to Set Aside Judgment', and 'Amended Motion to Set Aside Judgment and Order New Trial', the plaintiff's purpose being to demonstrate that defendant Anderson had not in these original motions limited its appearance, or reserved or asserted that the trial court 'had no jurisdiction of the person' of defendant Anderson. The motion to amend the transcript is sustained. Although the original but abandoned motions were not formally admitted into evidence, plaintiff offered them in evidence; defendant-appellant made no objection; and the trial judge indicated formal admission into evidence was unnecessary inasmuch as the motions were 'part of the files in the case.' At another time during the hearing the trial judge announced, '* * * the Court will take judicial notice of all the files.' It seems that the trial court considered the former motions as if they were introduced into evidence.
The original appearance of defendant Anderson by motion to set aside the judgment and by the amended motion to set aside judgment and for a new trial on the merits, and without limiting the appearance, or reserving in these motions the stated jurisdictional question, was a waiver of the particular jurisdictional issue. Brown v. British Dominions General Ins. Co., Limited, of London, England, Mo.App., 228 S.W. 883; Currey v. Trinity Zinc, Lead & Smelting Co., 157 Mo.App. 423, 139 S.W. 212; 6 C.J.S., Appearances, Sec. 20, pp. 60-62.
The action of a trial court in sustaining or overruling a motion to set aside a default judgment is generally within the trial court's sound judicial discretion. The discretion to be exercised is not a capricious or arbitrary one, but is to be guided and controlled in its exercise by fixed legal principles. It has been generally held that, in order to justify a trial court in setting aside a default judgment, a defendant must have shown that he has a meritorious defense, and that he has good reason or excuse for the default; and, when a trial court has overruled a motion to set aside a default judgment and the trial court's action is reviewed, the trial court's action will not be disturbed unless the elements of reasonable excuse and meritorious defense are so clearly apparent that it is manifest the refusal to set aside was arbitrary. The possible injustice to plaintiff because of delay is to be also considered. Yet, it has been said that an appellate court is less apt to interfere when a judgment is set aside than when it is not. This is because, when the judgment is set aside, the case is reopened and justice will yet be done by a trial on the merits. The general rule is that, where the application or motion to set aside discloses a meritorious defense, and reasonable diligence or excuse for default is shown, and no substantial injury to plaintiff will result from delay, a trial court should exercise its discretion in favor of a trial on the merits. It is also thought there are no certain rules which will fit any and all cases--the facts and circumstances of each case should be taken into account in deciding whether a defaulting defendant has shown the diligence a reasonably prudent person would have exercised in the circumstances. Barry v. Johnson, 3 Mo. 372; Tucker v. St. Louis Life Ins. Co., 63 Mo. 588; Robyn v. Chronicle Pub. Co., 127 Mo. 385, 30 S.W. 130; Harkness v. Jarvis, 182 Mo. 231, 81 S.W. 446; Hall v. McConey, 152 Mo.App. 1, 132 S.W. 618; Parks v. Coyne, 156 Mo.App. 379, 137 S.W. 335; Hartle v. Hartle, Mo.App., 184 S.W.2d 786; Huffman v. Meriwether, Mo.App., 201 S.W.2d 469.
It is the general rule that negligence of counsel in permitting a default judgment is imputable to the client. Casper v. Lee, 362 Mo. 927, 245 S.W.2d 132. But even though negligence of counsel is imputable, it does not necessarily follow that the rule is applicable to a case where defendant has retained or employed counsel, and counsel abandons the defense of the case without notice to his client-defendant; nor does it necessarily follow that the rule is applicable to a case where the client had justifiably relied on another to arrange for and attend to the defense of the case. Lewis v. Van Hooser, 206 Mo.App. 618, 227 S.W. 618; Parks v. Coyne, supra; Hall v. McConey, supra; Barto v. Sioux City Electric Co., 119 Iowa 179, 93 N.W. 268; Newton v. De Armond, 60 Cal.App. 231, 212 P. 630; Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124; Id., Tex.Civ.App., 112 S.W.2d 248; Annotations, 114 A.L.R. 279 and 126 A.L.R. 369; 49 C.J.S., Judgments, Sec. 280, p. 500, at page 503.
Upon the hearing of Anderson's motions, there was substantial evidence introduced tending to show that, when plaintiff was injured, Gourley was not acting within the course of his employment with defendant Anderson. There was also evidence that plaintiff's injuries were solely due to the conduct of Pardon. (Now see again the 4th paragraph of the trial court's findings of fact, supra.) And during the hearing, defendant-appellant Anderson's counsel expressed Anderson's good faith, and stated to the trial court, They had filed their original motions for Anderson on the very day they learned the judgment had been entered.
We shall now review the evidence tending to support and to refute the issues of defendant Anderson's reasonable excuse for failing to plead.
In this case, plaintiff-respondent was and is represented by the law firm of Dalton, Treasure and Dalton of Kennett; and the original defendant Gourley was represented by the law firm of Riddle and Baker of Malden. Riddle and Baker were also the regularly employed counsel of defendant-appellant Anderson. However, Riddle and Baker did...
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...injustice will accrue to the plaintiff as a result of the delay occasioned by setting aside the judgment. Whitledge v. Anderson Air Activities, Inc., 276 S.W.2d 114, 116 (Mo.1955); Murray, 667 S.W.2d at 428. We have carefully reviewed defendant's Motion to Set Aside Final Judgment of Defaul......
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