Currey v. Trinity Zinc, Lead & Smelting Co.

| Mo. Ct. App. | May 8, 1911

Lead Opinion

GRAY, J.

— The plaintiff brought this suit, in the circuit court of Jasper County, on the 2d day of July, 1910, to recover from the defendant $1620', and to impound certain funds belonging to the defendant in the hands of A. F. Carmean, clerk of the circuit court of said county. In aid of the suit, an attachment was issued and the funds of the defendant owing by tenants on its mining lands in said county, were garnisheed. Summons was issued to the sheriff returnable to the October term of the court. There was no service on the defendant, but on the 5th day of October, (the third day of the term) the following- motion (omitting caption) was filed by the defendant: “Comes now the defendant and appearing for the purpose of this application only, and represents to the court that the plaintiff has attached the property and effects of defendant and asks the court to make an order permitting defendant to give bond in a sum to be fixed by the court and have the property and effects of defendant released from said attachment.”

On the 13th day of October, the defendant appeared by its attorney and asked permission to withdraw the application above set forth, and the following order was duly entered of record: “By leave of court application for an order permitting the defendant to give a redelivery bond withdrawn.”

On the 15th of October, judgment was rendered against the defendant in favor of the plaintiff. The judgment of the court recites, “it appearing to the court that the defendant has filed a motion herein praying the court for an order allowing it to file a redelivery bond, and asking the court for* an order releasing the attached property herein,” etc.

On the 18th day of October, the defendant filed a motion to set aside the default judgment, for the following reasons: “1st. That said judgment was rendered without proper service of process upon this defendant. And defendant states that he has a good and meritorious defense to the said cause of action stated in plaintiff’s petition, to-wit: That plaintiff has been fully paid for all services rendered defendant as general manager or attorney or in any other capacity, and that defendant is not indebted to him in any sum for said services.”

The motion was supported by the affidavit of appellant’s attorney, but was overruled by the court, after the parties had offered testimony relating to the same.

It was shown by the testimony that the defendant is a foreign corporation, with its chief office out of this state; that for sometime previous to the institution of this suit, the plaintiff had been its general manager and attorney in Missouri; that he was superseded by a Mr. Ewell, and this suit was instituted by plaintiff to recover the amounts he claimed the defendant owed him for services rendered. The defendant had appointed Mr. Ewell its agent, upon whom process might be served in this state. The certificate had been filed with the Secretary of State. Mr. Ewell was located in Webb City, but had no sign at his place of business indicating that it was an office of the defendant.

The evidence further shows, however, that the plaintiff had transacted business with Mr. Ewell as the general manager of the defendant, and that plaintiff had this knowledge in plenty time to have served the summons upon Mr. Ewell, had he so desired.

The evidence further shows that it was understood between Mr. Young, the attorney for defendant, and Mr. Ewell, its manager, that nothing should be done to enter the appearance of the defendant at the October term, for the reason that defendant was not ready for trial on the merits. The plaintiff was suing on an account as general manager and attorney, and the defendant wanted to ascertain what services had been rendered, as the defense was that plaintiff had been paid in full for the value of of the services rendered. Parties were mining on the defendant’s lands, and its funds were tied up by the attachment proceedings. After talking the matter over, Mr. Young and Mr. Ewell agreed that they could give a redelivery bond to the sheriff under section 2317, Revised Statutes 1909. On reading the statute, the defendant’s attorney was of the opinion that the words found therein, to-wit, “under the order of the court,” required him to obtain an order from the court to authorize the sheriff to take the bond, and he appeared in court for the sole purpose of getting the order under that section of the statute; that when he afterwards learned that his appearance for that purpose might be construed as an appearance in the case, and that it was not necessary to apply to the court for an order under that section, he immediately asked permission to withdraw his application, and the same was granted. The order of the court and its judgment show that the court so understood the application of the defendant. It may be stated that there is no conflict as to the facts, and they are substantially as herein stated.

It is the claim of the respondent that appellant’s application was made under section 2341. This section provides how an attachment may be dissolved. First. When the affidavit is insufficient. Second. When the defendant shall appear and plead to the action and give bond to the plaintiff, conditioned that the property .attached shall be forthcoming when and where the court shall direct. And third. When the defendant shall appear and plead to the action and give like bond, conditioned that the defendant shall pay to plaintiff the amount which may be adjudged in favor of the plaintiff, including interest and costs of suit.

It will be noticed that the authority to dissolve attachment by giving bond, is conditioned on the appearance of defendant and plea filed to the action.- The defendant did not appear and plead to the action, and there is no testimony tending to prove that it was proceeding under section 2341. The undisputed testimony corroborated by the order and judgment of the court, shows that defendant was proceeding under ' section 2317.

Counsel for the respondent claim that the decision is controlled by the case of Whitings & Williams v. Budd, 5 Mo. 443" court="Mo." date_filed="1838-09-15" href="https://app.midpage.ai/document/whiting-v-budd-6610004?utm_source=webapp" opinion_id="6610004">5 Mo. 443. In that case a motion was filed to quash the attachment, and the parties were intentionally proceeding under what is now section 2341, and the court rightfully held that they were in court for all purposes. And if the evidence showed, in this case, that defendant was proceeding under the provisions of that section, we would hold that notwithstanding it attempted to limit its appearance, that it was in court for all purposes.

But it is shown beyond question by all the evidence, that the defendant’s attorney was proceeding under the other section of the statute, and not only with no intention of entering the appearance of his client, but at the time there was an understanding between him and his client that nothing should be done to enter the appearance of the defendant in the case at that term.

It is further shown that when the attorney learned that his actions might be construed by the plaintiff as an appearance, that he at once applied to and was granted permission by the court to withdraw the application.

This court has taken an advanced step toward the trial of cases upon the merits. We have adopted a most liberal set of rules in regard to the sufficiency of abstracts of the record filed in this .court. These rules were adopted with a view of avoiding the necessity of dismissing'so many appeals on account of mere technicality. In the recent case of Hall v. McConey, 132 S.W. 618" court="Mo. Ct. App." date_filed="1910-12-05" href="https://app.midpage.ai/document/hall-v-mcconey-6626675?utm_source=webapp" opinion_id="6626675">132 S. W. 618, we declared: “Courts should and do favor the trial of causes upon their merits, and, if failure to secure such trial is not due to the negligence óf the party in default, he should, upon a proper showing of merits, be given an opportunity to be heard. And it is well settled that the appellate court is less apt to interfere when the judgment was set aside, than when it was not. This is upon the theory that, when the judgment is set aside, the cause is reopened and justice will yet be done on the merits between the parties.” We further said: “The general rule is that, where the application discloses a. good defense on the merits, and a resonhble excuse for delay is shown, and no substantial injury has resulted from such temporary delay, the court should exercise its discretion in favor of the trial on the merits.”

In the present case, the suit was not for trial at the October term. The action of the defendant’s attorney in applying to the court, under a mistaken view of the law, for an order to permit the sheriff to take a redelivery bond, in no wise delayed the prosecution of plaintiff’s suit. The case is not similar to one where the party has been served with process, but failed to appear and the plaintiff appeared in proper time and took his judgment. In such a case, to set aside the judgment is to punish the plaintiff for the negligence of the defendant.

The premises considered, we are of the opinion that when the defendant made it appear to the court that its counsel was not authorized to enter its appearance for the October term, and that in making the application for a bond, the attorney was under the impression that it was necessary to obtain an order of the court before the sheriff was authorized to accept a redelivery bond, and that the attorney appeared for no other purpose, and subsequently, when he learned that plaintiff was ■construing his conduct as an appearance, immediately withdrew his application, and that defendant was- claiming that it had a meritorious defense to plaintiff’s demand, and that it had paid plaintiff all sums due him for services rendered defendant, the court should have set aside the default judgment.

The appearance of the defendant for the purpose .of asking to have the default judgment set aside, and alleging that it had a meritorious defense to plaintiff’s cause of action, was such an appearance by defendant that it was in court for all purposes at the time the court overruled the motion to set aside the judgment, and it will not be necessary for the plaintiff to take further steps to secure jurisdiction over the person of the •defendant.

The judgment will be .reversed and the cause remanded, with directions to the trial court to set aside the default judgment and give the defendant an opportunity to plead to the merits.

All concur.

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Rehearing

ON REHEARING.

GRAY, J.

— The respondent charges that the opinion in this case is in conflict with the following cases: Atkinson v. R. R. Co., 81 Mo. 50" court="Mo." date_filed="1883-10-15" href="https://app.midpage.ai/document/atkinson-v-atchison-topeka--santa-fe-railroad-8007773?utm_source=webapp" opinion_id="8007773">81 Mo. 50; Nevatt v. Springfield, 79 Mo. App. 198" court="Mo. Ct. App." date_filed="1899-02-21" href="https://app.midpage.ai/document/nevatt-v-springfield-normal-school-8262148?utm_source=webapp" opinion_id="8262148">79 Mo. App. 198; Clond v. Pierce City, 86 Mo. 357" court="Mo." date_filed="1885-04-15" href="https://app.midpage.ai/document/cloud-v-inhabitants-of-the-town-of-pierce-city-8008390?utm_source=webapp" opinion_id="8008390">86 Mo. 357; Adams v. Cowles, 95 Mo. 501" court="Mo." date_filed="1888-04-15" href="https://app.midpage.ai/document/adams-v-cowles-8009312?utm_source=webapp" opinion_id="8009312">95 Mo. 501 8 S. W. 711; Mobley v. Nave, 67 Mo. 546" court="Mo." date_filed="1878-04-15" href="https://app.midpage.ai/document/mobley-v-nave-8005965?utm_source=webapp" opinion_id="8005965">67 Mo. 546; Henley v. Kinley, 16 Mo. App. 176" court="Mo. Ct. App." date_filed="1884-06-24" href="https://app.midpage.ai/document/henley-v-kinley-6614502?utm_source=webapp" opinion_id="6614502">16 Mo. App. 176; Milner v. Shipley, 94 Mo. 106" court="Mo." date_filed="1887-10-15" href="https://app.midpage.ai/document/milner-v-shipley-8009171?utm_source=webapp" opinion_id="8009171">94 Mo. 106, 7 S. W. 175; Ainge v. Corby, 70 Mo. 257" court="Mo." date_filed="1879-10-15" href="https://app.midpage.ai/document/ainge-v-corby-8006304?utm_source=webapp" opinion_id="8006304">70 Mo. 257; Feurt v. Caston, 174 Mo. 289" court="Mo." date_filed="1903-04-01" href="https://app.midpage.ai/document/feurt-v-caster-8014634?utm_source=webapp" opinion_id="8014634">174 Mo. 289, 73 S. W. 576.

The above list includes cases from all the appellate courts of this state. And we are further advised by the respondent that our opinion is in conflict with the law as declared in all the text books, and with the decisions of all courts that have ever ventured an opinion on the subject. This attack is on that part of the opinion declaring that the recital of appearance in the judgment was not conclusive upon the defendant, and that defendant had the right to contradict the same by parol testimony.

A reading of the decisions from the courts of this state above cited, and with which it is claimed our opinion is in conflict, will disclose that in each case the attack on the judgment -was made at a subsequent term, and in nearly every instance, in a collateral- proceeding. The difference between the weight to be given to the recitals of a judgment when their correctness is made an issue in a direct proceeding at the term at which the judgment was rendered, and when the attack is made at a subsequent term, has been recognized from an early day. In Co. Lit. 260a, it is said: “During the terms wherein any judicial act is done, the record remaineth in the brest of the judges of the court, and in their remembrance, and therefore the roll is alterable during that terme, as the judges shall direct; but when the terme is past, then the record is in the roll, and admitteth no alteration, averment, or proof to the contrarié.”

In a very early day in this state, onr Supreme Court recognized this well-known difference. In Lindell v. The Bank of Missouri, 4 Mo. 228" court="Mo." date_filed="1835-10-15" href="https://app.midpage.ai/document/lindell-v-president-of-the-bank-of-missouri-6609652?utm_source=webapp" opinion_id="6609652">4 Mo. 228, the judgment recited that the defendants appeared by their attorneys. At a subsequent term a motion was filed supported by affidavit contradicting this recital. The Supreme Court said: “The record says the bank appeared by attorney. This must stand true, at all events it cannot be contradicted by affidavit. If this were allowed, then every judgment rendered in a court of record, would at all times be subject, to the same proceeding, no property would he .safe, the sanctity of a record would be lost, and with it, all security for right. It may be, if the attorney who appeared for the bank, did so by mistake, this mistake if discovered, might be corrected during the term, but hardly afterwards.”

In the present case, the proceeding is a direct attack upon the judgment, and at the same term at which it was rendered. The difference in the principle is to be applied where the attack is made at a subsequent term or in a collateral proceeding, and where it is made by direct attack at the same term, is clearly pointed out in Davidson v. Hough, 165 Mo. 574, 65 S.W. 731" court="Mo." date_filed="1901-12-03" href="https://app.midpage.ai/document/davison-v-hough-8014120?utm_source=webapp" opinion_id="8014120">65 S. W. 731, as follows: “It is true, as the learned counsel say, that a court speaks only by its record, but that is said of a court record in a collateral inquiry; it is not true that the verity of the record cannot be impugned by parol evidence in a direct assault in a manner allowed by law. For example, in this case, suppose when the parties appeared pursuant to the notice that an application for a temporary injunction would be made to one of the judges of the St. Louis Circuit Court, they discovered that instead of a mere preliminary proceeding, which might be had before a judge in vacation, the plaintiff presented his case in an open session of court and asked a final decree on its merits, and the defendants had then and there said that they were not there for .that purpose and had thereupon retired, and suppose then a decree had .been entered reciting that the defendants had appeared and consented thereto, can there be any doubt but that in a proceeding like this the defendants could show what the truth was by piarol evidence and prohibit the court from further proceedings based on that decree? To hold the contrary would be to say that a court could so intrench itself in its own record as to be invulnerable to such an attack.”

While the respondent filed a voluminous brief on this point and orally argued his motion for rehearing, he has not cited an authority holding that parol testimony is not admissible in a proceeding like this, to contradict the recitals of a judgment.

It is respondent’s next contention that, if we hold appellant did not appear to the merits, and was not served with process, then it had no right to file an ordinary motion during the term to set aside the judgment, but was compelled to resort to a petition for review un1 der sections 2101 and 2104, Eevised Statutes 1909: And a vigorous assault is made on the correctness of the opinion of this court in Hall v. McConey, 132 S.W. 618" court="Mo. Ct. App." date_filed="1910-12-05" href="https://app.midpage.ai/document/hall-v-mcconey-6626675?utm_source=webapp" opinion_id="6626675">132 S. W. 618, wherein we held that a motion to set aside a judgment may be filed any time during the term at which the judgment was rendered:

The right to set aside a judgment on motion made at the term at which the same was rendered, exists independent of any statute. It is the inherent power of every court of general jurisdiction, and exists in all cases, and upon the application of either party or upon the court’s own motion.

In Harkness v. Jarvis, 182 Mo. l. c. 235, 81 S.W. 446" court="Mo." date_filed="1904-05-31" href="https://app.midpage.ai/document/harkness-v-jarvis-8015071?utm_source=webapp" opinion_id="8015071">81 S. W. 446, Fox, Judge, said: “That judgments rendered remain in the breast of the court during the entire term at which they were rendered, and may be set aside or vacated by the court at. any time during the'term, upon its own motion, is conceded, and it is equally well settled that a motion to set aside or vacate a judgment, independent of the statute in respect to motion for new trial and in arrest of judgment and the time of filing, may be filed by either party any time during the term at which the judgment was rendered.”

In Hall v. McConey, and in the present case, we have declared no new rule in this state, but in holding that a motion to set aside a judgment may be filed at any time during the term at which the judgment was rendered, we were only following the conceded practice in this state, as declared in Williams v. Circuit Court, 5 Mo. 248" court="Mo." date_filed="1838-06-15" href="https://app.midpage.ai/document/williams-v-circuit-court-of-st-louis-county-6609932?utm_source=webapp" opinion_id="6609932">5 Mo. 248; Childs v. Railroad, 117 Mo. 414" court="Mo." date_filed="1893-07-03" href="https://app.midpage.ai/document/childs-v-kansas-city-st-joseph--council-bluffs-railroad-8011027?utm_source=webapp" opinion_id="8011027">117 Mo. 414, 23 S. W. 373; Harkness v. Jarvis, 182 Mo. 231" court="Mo." date_filed="1904-05-31" href="https://app.midpage.ai/document/harkness-v-jarvis-8015071?utm_source=webapp" opinion_id="8015071">182 Mo. 231, 81 S. W. 446; Miller v. Crawford, 140 Mo. App. 711" court="Mo. Ct. App." date_filed="1910-04-04" href="https://app.midpage.ai/document/miller-v-crawford-6624271?utm_source=webapp" opinion_id="6624271">140 Mo. App. 711, 126 S. W. 984.

The respondent insists that the record conclusively shows the defendant appeared in open court with the intention of giving a bond to dissolve the attachment and not a redelivery bond under section 2317. The bond to be given under section 2317 is known in legal language as a “Forthcoming” or “Redelivery” bond, and the bond given under section 2341, as a “Bond to Dissolve.”

The trial judge was well acquainted with these terms, and in his order permitting the defendant to withdraw its application, and in the judgment subsequently rendered, he states that the application was for an order. to give a redelivery bond. If the court was of the opinion that the defendant was asking to give a bond to dissolve the attachment, it is strange the court did not use that term in speaking of the bond.

But the respondent says that no property was found in the possession of the defendant, and therefore, the defendant was not. entitled to give a redelivery bond. Section 2317 plainly provides that when the property of the defendant shall be found in his possession or in the possession of any third person, the defendant may give a bond to the officer that the property shall be forthcoming. But it is again insisted that the property mentioned in this section is tangible property, and that the record in this case does not show that any tangible property of the defendant was attached. The abstract of the record recites that the sheriff, under the writ of attachment, levied on all the real estate belonging to defends ant, and also the royalties due defendant from tenants mining on its land. The respondent, however, claims that this recital is contradicted by the sheriff’s return. In this respondent is again in error. The sheriff’s return on the writ is not contained in the record, but his return on the summons is found therein. The respondent’s error is due: to the fact that, he has mistaken the return on the summons for the return on the writ.

In addition to the reasons assigned .in the original opinion for a reversal of the judgment, the appellant contended that whatever appearance was entered was withdrawn with the consent of the court, and it was error for the court to subsequently render a judgment against it without notice. The appellant’s counsel testified that he was not authorized to enter the general appearance of his client, and that he made the application under the erroneous idea that it was necessary to get the permission of the court to give a redelivery bond; that when he learned that the plaintiff might construe his action as an appearance, we went to the court and stated that he desired to withdraw anything on the record indicating an appearance, for the reason that he had no authority to appear in the case, and that the judge stated there was nothing on the record indicating in any way that he intended to appear in the case, and thereupon, the court made the order permitting him to withdraw his application. The truthfulness of this testimony was not challenged by the respondent. There was no service in the case, and no right to proceed to judgment except it was based on this inadvertent appearance. This appearance was practically withdrawn with the consent of the court, and while it was thus standing in full force, and while the court must have known that defendant was acting on the theory that its appearance (if it ever had appeared) had been with•drawn with the consent of the court, a judgment for over $1600 was rendered against the defendant.

The withdrawal of the appearance and the application. was a judgment of the court until reversed, or until set aside, and left the court without any jurisdiction to render the judgment against the defendant. [McArthur v. Lefler, 110 Ind. 56, 10 N. E. 83; Jenkins v. Yorks-Cliffs Imp. Co., 110 F. 807" court="None" date_filed="1901-08-26" href="https://app.midpage.ai/document/jenkins-v-york-cliffs-imp-co-9302261?utm_source=webapp" opinion_id="9302261">110 Fed. 807.]

■ In any event it seems to us that under the circumstances of this case, when these matters were presented to the court on a motion to set aside the judgment, made almost immediately after the same was rendered, the court failed to exercise a proper judicial discretion when it refused to set aside the judgment.

' In Parks v. Coyne, 137 S.W. 1" court="Mo. Ct. App." date_filed="1911-05-01" href="https://app.midpage.ai/document/howard-v-hurst-6627583?utm_source=webapp" opinion_id="6627583">137 S. W. 1. c. 340, this court said: “The reason for the strict enforcement of the rule as to the trial court’s discretion in these matters in most of the cases is that plaintiff would suffer expense or delay, if the default judgment were set aside. This condition does not exist in this case, for the defendant moved to set aside the default judgment within three days after it- was rendered. The general rule is that, where the application discloses a good defense on the merits, and a reasonable excuse for delay is shown, and no substantial injury has resulted from such temporary delay, the court should exercise its discretion in favor of the trial on the merits.”

That the decisions of this court are not out of harmony with the decisions of other courts upon this subject, we cite the following pointed language from the Court of Appeals of Kentucky, in the case of Southern Ins. Co. v. Johnson, 131 S.W. 270" court="Ky. Ct. App." date_filed="1910-11-02" href="https://app.midpage.ai/document/southern-insurance-v-johnson-7138091?utm_source=webapp" opinion_id="7138091">131 S. W. 270: “In the case at bar it appears that appellant in good faith and without unnecessary delay employed counsel preparatory to making its defense. The defense presented is meritorious. If true, appellee had obtained judgment by a mere slip for some $1200 more than he was entitled, and had obtained a judgment for a sum none of which was then due. Tbe application to set aside tbe default judgment was witbin two days after it was entered, and before any other rights bad arisen based upon it. Tbe ends of justice are better subserved by allowing tbe parties to proceed to a trial of their controversy and a rendition of a judgment .in conformity to tbe facts on tbe merits of tbe case, rather than let one of them bold tbe sum of $1200 which be may not be entitled to in law or fact, but which be obtained through a misunderstanding and mishap of tbe counsel opposing. It was an abuse of judicial discretion not to grant appellant’s motion.”

Tbe motion for rehearing is overruled.

AH 'concur.