Frazier v. Bishop

29 Mo. 447 | Mo. | 1860

Napton, Judge,

delivered the opinion of the court.

This suit was upon two promissory notes, and the defendant having been personally served in due time, judgment was taken on the second day for want of answer; on the third day the defendant moved to set aside this judgment and for leave to file his answer, which was appended to the motion, upon grounds disclosed in an accompanying affidavit. The affidavit of defendant stated that his answer was drawn up and ready to be filed on the second day of the court, with the exception that it was not yet sworn to, and that he was compelled to appear before the grand jury on that day, and that the court adjourned at an earlier time than usual and whilst be, the defendant, was still before the jury; that, as soon as he was dischai’ged, he swore to his answer before the clerk and filed it, but the court had then adjourned. This motion was overruled and an exception taken, which presents the only point for our consideration.

We are unable to perceive any -grounds upon which the court was authorized to refuse this application. The defendant, being a witness before the grand jury, could not have any means of knowing how long his-attendance there might be required; and the unexpected adjournment of the court was calculated to take the defendant by surprise. It could be a matter of no sort of importance to the opposite party that the answer was filed an hour earlier or later ; nor is it seen that the dispatch of business generally would be affected by allowing the answer to be filed. But we put the case entirely on the ground that the defendant was, at the time within which he was authorized to file his answer, otherwise employed in obedience to a mandate of the court or its officer, and that his rights 'ought not to be prejudiced thereby.

The other judges concurring, the judgment is reversed and case remanded.