177 Mo. App. 640 | Mo. Ct. App. | 1913
Defendant appeals from a judgment entered against him during his absence. The principal question for consideration relates to the ruling of the court in refusing to set the judgment aside on motion; but other questions are suggested in plaintiff’s argument advanced to preclude a review of the main question here.
It is urged, first, that the ruling of the court on the motion to set aside the judgment is not before us, for it is said the appeal is from the judgment alone. It appears the court entered judgment against defendant, who had answered, during the absence of himself and his counsel, on the twenty-eighth of February, and on March fourth, during the same term of the court, the motion to set aside the judgment thus entered was filed. Subsequently the court considered the motion on affidavits, and overruled it, whereupon an exception was saved and the appeal prosecuted here. The affidavit for appeal is in the usual form prescribed by the statute and because of this, plaintiff argues that no complaint is made of the ruling of the court on the motion which denied defendant’s right to have the judgment set aside. The statute (Sec. 2040, R. S. 1909) pre
Tbe case originated before a justice of tbe peace, where defendant answered and contested tbe case, but tbe plaintiff prevailed. From that judgment for plaintiff, defendant perfected bis appeal to tbe circuit court, paid tbe filing fee and caused tbe transcript to be filed in tbe clerk’s office, all in due time. Moreover, it appears that defendant went about prosecuting bis appeal thereafter, for be served notice of tbe appeál in due time on tbe plaintiff, as tbe statute requires. On tbe day tbe cause was set for trial in tbe circuit court, during tbe absence of defendant and his counsel, tbe court proceeded and gave judgment for plaintiff in tbe cause, which appears to be one in affirmance of the judgment of tbe justice. However, it is said that plaintiff introduced proof to establish bis cause of action, and we will treat tbe matter as though be did.
It is argued by plaintiff that a mere motion filed during tbe term to set tbe judgment aside is not sufficient in tbe circumstances, for that be should have filed a petition for review.' Of this it is to be said that no interlocutory judgment was entered, followed by an assessment of damages and final judgment thereafter, but it appears tbe whole matter was adjudicated at once.. Moreover, defendant’s answer was on file and undisposed of. Tbe statute relied upon by plaintiff in support of this argument is without influence in tbe circumstances stated, for tbe case is not one where, a petition for review is required. Several sections of tbe statute are to be read together in this connection.' Sections 2093, 2094, 2097, 2098, 2090', 2100', 2101, 2102, 2103, 2104 treat with tbe matter of interlocutory judgments and tbe assessments of damages and final judgments by default thereafter. In such cases a petition for review is required, to tbe end of vacating tbe judgment.' Sections 2101, 2104 and 2093 are to be considered together touching this' matter. It is no doubt true
Here it appears plaintiff instituted suit before a justice of the peace against defendant on a promissory note. Defendant interposed a written answer thereto,
On the question of diligence it appears from the affidavits that defendant had arranged with his
Here it appears that defendant was reasonably diligent and had performed all of the requirements of the law by prosecuting and giving notice of the appeal toward procuring a trial on the merits of the case. He was situated where he could reach the court room in fifteen minutes on the call of his counsel who was to look after the case and notify him in due time. .He is the defendant and therefore could be in attendance in due time if called even when the case was taken up. The counsel knew the case then on trial would consmne several hours before it was finished and defendant’s cause was set eighth on the docket for the day. It appears defendant’s counsel reached the court room by eleven o’clock and that he would have been there before the case was disposed of except for the fact that he was stricken with sickness en route which detained him. Though plaintiff’s counsel says that defendant’s counsel said to him over the telephone afterwards, during the same day that he had been detained in another court room, no one denies that plaintiff’s counsel was actually seized with acute indigestion and rendered sick and unable to attend the trial before he did. This
The judgment should, therefore, be set aside, unless the argument is to prevail that the defendant’s meritorious defense was overcome by the affidavits denying it on the part of plaintiff. There is much in the affidavits filed by plaintiff in opposition to those filed by defendant tending to deny the defense, and it is said in some of them that defendant admitted the note was a valid claim and agreed to pay it. It may be that the trial court found the issue touching this matter for plaintiff, but if it did, error inheres with respect thereto. Obviously this matter is for the jury in the trial on its merits, and not to be determined on mere affidavits filed to contradict those in support of the meritorious defense appearing1 in the motion to set the judgment aside. Counter affidavits, or portions of them which go alone to the question of meritorious defense, are not to be considered, for it is sufficient if the defense revealed appears to be meritorious and that the evidence tends to establish it for the consideration of the jury. In other words, the court is not to weigh the evidence touching this matter of the defense with nicety, but will take into account only the tendency of it and the probability of the result of the trial upon the merits. If the defense set forth in the motion is a valid one and the facts related in the affidavits tend to establish it, so that a question for the jury may appear thereon, it will suffice and the judgment should be set aside, to the end that a trial of the issue may be had. [See Hall v. McConey, 152 Mo. App. 1, 8, 132 S. W. 618; State Ins. Co. v. Granger, 62 Ia. 272; 6 Ency. Pl. & Pr. 158, 159.]
It is true that a counter showing on the question of negligence or touching the excuse for the failure of defendant or his counsel to be present is competent matter for consideration in the trial court on the hearing of the motion, and if there was substantial evidence in the affidavit tending to prove that defendant’s counsel was not overcome with sickness and detained, we would incline to support the judgment on the theory that the court had found the fact to be otherwise. [See 6 Ency. Pl. & Pr. 159.] But no one contradicts the statement in the affidavit that defendant’s counsel was suddenly seized with .sickness, as above stated, which detained him, and there are statements in other affidavits tending to prove that he complained to others of his condition immediately thereafter. This being true, we must treat the matter of the sickness of counsel and his unavaidable detention thereby as established in the case and not denied.
It would seem that the court either treated defendant’s meritorious defense as overthrown by the showing made in the counter affidavits or exercised its discretion in an arbitrary manner. In either event, error appears, and the judgment should be reversed and the cause remanded therefor. It is so ordered.