Billingham v. Miller & Teasdale Commission Co.

115 Mo. App. 154 | Mo. Ct. App. | 1905

GOODE, J.

— On the 31st day of May, 1904, the plaintiff filed a petition against the defendant company, a corporation, alleging that on February 21,1904, plaintiff had shipped from New York to the defendant in St. Louis, a carload of apples, pursuant to an order given by the defendant for the apples; that the agreed price of the fruit was $454.50; that in due course the shipment arrived in St. Louis and the railroad company in whose custody it then was, notified the defendant of its arrival, but the defendant refused to receive the fruit; that thereafter it remained in the custody of the railroad company about a month and the defendant still refusing to receive it, at the end of that time the railroad company sold it in open market for the best price obtainable'; that the necessary charges for freight, storage and sale consumed the price the apples brought. A summons, directed to the defendant company, was issued from the office of the clerk of the circuit court of the city of St. Louis and duly served by delivering a copy of the writ and petition to defendant’s secretary at the usual business office of the company, when the secretary was in charge and the president or other chief officer of the company could not be found in the city; and so the return recites. The cause was returnable to the June term, 1904. Defendant failed to answer and, on November 16, 1904, at the October term, an interlocutory judgment by default was entered and the cause put on the default docket for an inquiry of damages. This carried the matter over to the December term; and on January 3, 1905, during that term, testimony was taken and final judgment entered against the defendant in favor of the plaintiff for $490.99, besides interest and costs. The testimony tended to support the allegation of the petition. It showed that notice of the arrival of the fruit was given to the defendant company, but that no attention was paid to the notice; that the carload of apples was kept by the railroad company on its tracks for about a month and then sold in open market, realizing enough to pay the charges against the fruit and $44; that the latter was retained by the railroad company for the benefit of whomsoever was entitled to it. On January 5, 1905,. two days after, final judgment, the defendant, for .the first time appeared in the cause and filed a motion to set aside the judgment and grant a new trial; also a motion to set aside the default. The application was supported by the affidavit of the defendant’s president, in which it was stated that, though the return of the sheriff showed due service, in truth the defendant, through some fault of its employees, or other unknown cause, had no actual knowledge of the pendency of the suit until the fourth day of January, 1905 — that is, the day after the entry of final judgment — on which day the company was informed of the judgment against it in the circuit court by a witness who had testified on the inquiry of damages. The affidavit further stated that the defendant had a good and meritorious defense to plaintiff’s action, but set out no particulars of the defense. The motion to set aside the default and the final judgment, and to grant the defendant a new trial, were overruled February 21, 1905, the learned trial judge stating that though at first he was under the impression that the defendant might be entitled to the relief asked, on further reflection, and taking into consideration the long time in which the case was pending before final judgment was entered, he had concluded it would be unjust to the plaintiff to reopen the matter, as the defendant’s default was due to its own negligence.

Any. explanation of tbe defendant’s failure to answer must include negligence on tbe part of its secretary .at least; for be was personally served with tbe writ of summons. Hence, tbe defendant was to blame for tbe default. But aside from that fact, there is no way in wbicb we can grant relief against tbe default, nor do we see bow tbe circuit court could have done so. Tbe application to set aside tbe default was not made until after final judgment. It was a simple motion and in no sense a petition for review. Tbe statute allows a motion to set aside a default before final judgment, but not after. [R. S. 1899, sec. 770; Mathews v. Cook, 35 Mo. 286; Burns v. Burns, 61 Mo. App. 612.] A party in default may obtain relief against a judgment even after it is final if be bas good grounds and adopts tbe proper procedure; namely, that prescribed by section 780 of tbe Revised Statutes.

Tbe judgment is affirmed.

All concur.