Zurheide-Hermann, Inc. v. London Square Development Corp., ZURHEIDE-HERMAN

• Decision Date: 14 December 1973
• Docket Number: INC,No. 56945,ZURHEIDE-HERMAN,No. 2,56945,2
• Citation: 504 S.W.2d 161
• Parties: , a corporation, Respondent, v. LONDON SQUARE DEVELOPMENT CORPORATION et al., Appellants
• Court: Missouri Supreme Court

Page 161

504 S.W.2d 161

ZURHEIDE-HERMANN, INC., a corporation, Respondent, v. LONDON SQUARE DEVELOPMENT CORPORATION et al., Appellants.

No. 56945.

Supreme Court of Missouri, Division No. 2.

Dec. 14, 1973.

Motion for Rehearing or Transfer to Court En Banc Denied

Jan, 14, 1974.

Thomas, Busse, Cullen, Clooney, Weil & Ottsen, Donald H. Clooney, St. Louis, for respondent.

Roger M. Hibbits, Florissant, for appellants.

HOUSER, Commissioner.

This is an appeal from an order overruling a motion to set aside a default judgment in the sum of $31,350.57. Notice of appeal was filed May 21, 1971.

Zurheide-Hermann, Inc. filed a suit for breach of contract against three corporations, London Square Development Corporation, U.S. Construction and Development Corporation, and Lewis & Clark Towers, Inc. (hereinafter referred to as 'London,' 'Construction' and 'Towers,' respectively), and one individual, John A. Defford. Subsequently two other corporations, Project Development and Leasing, Inc. (hereinafter 'Development') and Lewis & Clark Management Company, John A. Defford, Registered Agent (hereinafter 'L & C'), were added as parties defendant by amendment of the petition.

Defendants were personally served. Attorneys Carleno and Nick, representing all defendants, filed on their behalf a motion to dismiss the amended petition, which was overruled. Thereafter and on July 11, 1968 defendants filed answers and plaintiff filed a reply. About eleven months later (nothing of record having transpired in the interim)--on June 9, 1969--Carleno and Nick by leave of court formally withdrew as attorneys for all defendants.

Forty days later, on July 19, 1969, plaintiff filed written interrogatories, to be answered separately by each of the defendants London, Towers, Development and John A. Defford. Rule 56.01, V.A.M.R., authorizes '(a)ny party (to) serve upon any party written interrogatories to be answered by the party served or, if the party served is a * * * private corporation * * *, by any officer or agent, * * *.' The governing rule with respect to service of interrogatories is Rule 43.01, the pertinent provisions of which are:

'(a) Service--When Required. Every pleading, subsequent to the original petition, every written motion, other than one which may be heard ex parte, and every written notice, appearance, demand, offer of judgment, order, and similar paper which by statute, court rule or order is required to be served, shall be served upon each of the parties affected thereby, but no service need be made on parties in default except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided for service of summons.

'(b) Service--Upon Attorney. Whenever under these rules, or any of the statutes of this state, service is required or permitted to be made upon a party represented by an attorney of record, the service shall be made upon the attorney unless service upon the party himself is ordered by the Court. When a party is represented by more than one attorney service may be made upon any such attorney.

'(c) Service--How and by Whom Made. Unless otherwise ordered by the Court, service required by subsections (a) and (b) of this rule may be made in the following manner:

'1. Upon the attorney by delivering a copy to him or by leaving a copy at the attorney's office with a clerk or secretary or with an attorney employed by or associated with the attorney to be served, or by mailing a copy to such attorney at his last known address;

'2. Upon a party by delivering or mailing a copy to him or by serving a copy in the manner provided for service of summons in Rule 54.06.

'Service provided for in (c)(1) and (2) may be made by a competent witness. Service by mail is complete upon mailing.

'(d) Service--How Shown. Service may be shown by acknowledgment of receipt or by affidavit or by written certificate of counsel making such service.'

The following certificate of counsel making service was typed on the last page of the interrogatories:

'Copy of the foregoing mailed this 18th day of July, 1969 to John J. Cento, Registered Agent for London Square Development Corporation, 9953 Lewis & Clark Boulevard, St. Louis, Missouri; John A. Defford, Registered Agent for Lewis & Clark Towers, Inc., 9953 Lewis & Clark Blvd., St. Louis, Missouri; John J. Cento, Registered Agent for Project Development and Leasing, Inc., 9953 Lewis & Clark Blvd., St. Louis, Missouri and John A. Defford, 9953 Lewis & Clark Blvd., St. Louis, Missouri

/S/ Donald H. Clooney'

A post office receipt for registered mail shows delivery on August 5, 1969 and that 'Mrs. J. Defford' signed for the registered mail.

On August 27, 1969 plaintiff filed a motion to compel defendants to answer interrogatories or in the alternative to strike defendants' pleadings. The following appears on the last page of this motion, immediately following the attorneys' signature to the motion:

'Copy of the foregoing mailed this 26th day of August, 1969, to London Square Development Corporation, Lewis & Clark Towers, Inc., Project Development and Leasing, Inc. and John Defford % John A. Defford, 6680 Parker Road, Florissant, Missouri

/S/ Donald H. Clooney

Donald H. Clooney, Attorney for Plaintiff

'The above Motion set for hearing on Friday, September 5, 1969.

/S/ Donald H. Clooney

Donald H. Clooney, Attorney for Plaintiff'

On September 5, 1969 the court sustained the above-mentioned motion, '(i)t being shown to the Court that all defendants were duly mailed a copy of the interrogatories and a copy of the motion to compell (sic) answers to interrogatories * * *,' and directed defendants to answer the interrogatories on or before September 20, 1969, failing in which their pleadings would be stricken. Plaintiff's attorney was directed to notify all defendants of this order by mail.

On September 9, 1969 attorney Clooney on his firm's stationery wrote a letter to London, Development, L & C and John A. Defford, at the address 6680 Parker Road, Florissant, Missouri 63033, advising them that on September 5 the motion last mentioned was called; that plaintiff appeared but defendants did not appear; that on proof of mailing of the interrogatories, motion and notice of hearing the motion was sustained; and that defendants were directed to answer by September 20 or have their pleadings stricken.

On September 29, 1969 the court granted a default and inquiry to plaintiff, striking the answers of the four defendants.

On October 21, 1969 plaintiff's motion for default was heard and granted. The court rendered judgment against the four defendants for a total of $31,350.57.

Following attempts to enforce payment of the judgment an attorney entered his appearance for John A. Defford and filed a motion on behalf of all defendants to set aside the judgment, alleging that they received notice of the judgment on or about May 20, 1970; that they had valid defenses to plaintiff's charges; that the default judgment is defective for irregularities on the face of the record because (1) defendants were never in default; (2) mailing the interrogatories and motion was contrary to court rules; (3) adequate notice of hearing of the motion was not given to defendants; (4) adequate notice of the court's action of September 5, 1969 was not given to each defendant; (5) adequate notice of hearing was not given because the one-line notice did not indicate a time or place of hearing. Following defendants' pleading to the motion and plaintiff's reply the motion was submitted to the court and overruled. Defendants' posttrial motions were subsequently overruled and defendants appealed.

Appellants have filed a motion to strike certain portions of the statement of facts in respondent's brief, on the ground that certain statements therein are incorrect, argumentative and improper. There are certain inaccuracies in respondent's statement of facts but this appeal involves record facts, which we can ascertain without difficulty, and the inaccuracies and argumentative portions of the brief statement of facts are not of such a nature as to interfere with our ability to determine the case on the merits with reasonable certainty and effort. Accordingly, in the interests of justice the motion to strike is overruled. Fowler v. Laclede Gas Company, 488 S.W.2d 934(1) (Mo.App.1972).

Point I.

Appellants have briefed and argued several reasons why the default judgment should have been set aside for irregularities patent on the face of the record.

Appellants argue that the court should not have sustained plaintiff's motion to compel answers to the interrogatories or strike their pleadings because the interrogatories, motion and notice of hearing were not properly served, in that they were mailed to parties not...