Adams v. Hickman

43 Mo. 168 | Mo. | 1869

Currier, Judge,

delivered the opinion of the court.

The question involved here is one of practice. An interlocutory judgment by default was rendered against the defendant, who, the succeeding day, moved the court to set it aside, and for leave to file an answer. The motion W"as accompanied with an affidavit and various exhibits. It was overruled by the court, and final judgment entered for the plaintiff. This judgment was reversed by the District Court, and the plaintiff brings the case here by writ of error. From the affidavit and papers in the case, among which is the defendant’s answer, it appears that the suit was by attachment to the Cooper County Circuit Court, February term, 1867, the defendant being a non-resident, and notice being given by publication,. No actual notice of the pendency of the suit appears to have reached him till July, 1867. The defendant was absent in Europe from about the last of the preceding December till that time. Before leaving for Europe, in December, in anticipation. of a suit, the defendant engaged counsel to represent him, who appeared at the February term of the court and obtained an extension, of the time for pleading to within ninety days of the succeeding August term of the court, it being then believed that the defendant would be back from Europe by the 1st of May, 1867. He did not reach New York, however, till July, where he met a letter from Ms attorney advising him of the suit. He thereupon hastened to Boonville, and had his answer prepared, which was lodged with the clerk of the court on the 9th of July. He then proceeded to Texas, and obtained testimony to be used on the trial of the cause, and was ready for trial at the August term, to which the case stood continued. The answer is elaborate, and the affidavit filed by the attorney states that it could not be prepared without the assistance of the defendant. The earnest determination of the defendant to defend against the claim sued on is manifest. Under the circumstances it would be, as it seems to us, more technical than reasonable to deny him an opportunity of doing so. The answer discloses merits, and the affidavit and exhibits show reasonable diligence, both on the part of the attorney and Ms client. A meritorious defense and a reasonable degree of diligence in making it is all that it is necessary to establish,in order to justify the setting aside of the interlocutory judgment.

The judgment of the District Court reversing the judgment of the Circuit Court is affirmed.

The other judges concur.