96 Mo. App. 184 | Mo. Ct. App. | 1902
The plaintiff’s petition, in substance, alleged that he and his wife sold defendant two lots in Leavenworth City in the State' of Kansas, which were subject to a mortgage lien to secure the payment of a promissory note for $7,500, payable to one Harvey, and that as a part of the purchase price of said lots the defendant, by the terms of the deed of conveyance to him, executed by him (plaintiff) and bis wife, assumed and agreed to pay said note and accepted said conveyance and entered into the possession of said lots. It was therein further alleged that defendant made default in the payment of said note; that afterwards the said Harvey brought a suit against both plaintiff and defendant in a proper Kansas court to foreclose the said mortgage and to obtain a personal judgment on said note; that a decree of foreclosure and. also a personal judgment was rendered in that suit against plaintiff for $7,871.25; that the said lots were sold, under the said decree, bringing six thousand dollars, which was applied in discharge of said judgment reducing the same to $2,616.88, which was paid by plaintiff. There was the' further allegation that by reason of the premises the defendant was indebted to plaintiff, etc.
The answer was a general denial coupled with which was an allegation that there was another action pending in the circuit court of Jackson county, at Kansas City, in which the subject-matter and the parties
A judgment by nil dicit was given, after which the defendant filed a motion to set the same aside, which being overruled he took an appeal here.
I. The day before the cause was called by us for hearing, the plaintiff filed a motion to dismiss the appeal for the reason that the defendant’s abstract of the record did not disclose any record entry showing the filing of the bill of exceptions. Between the time ■of the filing of the motion and that of calling the cause for hearing, we had been unable to examine and pass upon such motion, and so it was submitted with the case.
During the argument by counsel here at the bar some allusion was made to the condition of the abstract of the record, when it was suggested by one of us that the defendant should file an additional abstract of the record, which was done some ten days later on. But the plaintiff strenuously objected to this.
Under our rule five, which was adopted before the enactment of section 813, Revised Statutes, 1899 (Acts 1891, p. 69), no suggestion of a diminution of the record could be entertained by us after joinder in error, except by consent of parties, and since the time the statute ceased to any longer require the formal assignment and joinder of errors, where causes have been brought up by the short method under section 813, ante, we have, after the filing of the briefs, refused to permit the appellant or plaintiff in error to file an additional abstract without the consent of the respondent •or defendant in error. "We have treated the filing of the briefs as being equivalent to the assignment and joinder of error under the old statute, and in that way applied the foregoing rule.
Ever since the ruling in Bank v. Davidson, 40 Mo. App. 421, we have constantly held that where the appellant or plaintiff in error fails, in his original abstract, to set forth such parts of the record as shows
n.. But suppose we are wrong in our conclusion as just stated, and that the filing of the additional abstract cured the defect in the original, and that there-is, therefore, a valid bill of exceptions, then we are confronted with the question whether or not the trial court erred in its action in overruling the defendant’s-motion to set aside the judgment. It is an established rule of practice in this State that in order to justify a trial court in setting aside a judgment by default, the defendant must show (1) that he has good reason for the default, and (2) that he has a meritorious defense. He must establish both of these grounds before he-can be relieved from the consequences of his default. Robyn v. Chronicle, 127 Mo. loc. cit. 391-2; Pry v. Railroad, 73 Mo. 123. There is no distinction between the negligence of a party to an action and that of his attorney. Field v. Matson, 8 Mo. 686; Ridgley v. Reindeer, 27 Mo. 442. The affidavit of the defendant’s attorney, which was filed in support of his motion, was to the effect that “the said cause was regularly set for trial on the thirteenth day of June, 1901, .and that this affiant and plaintiff’s attorney, A. L. Cooper, were in the courtroom the morning of the said day, when the case was called by the court, and the case was announced ready, and was listed by the court for trial, that there were a number of cases ahead of said above cause, that after waiting for about thirty minutes this affiant left Mr. Cooper and walking to the clerk’s desk, asked
The plaintiff filed the affidavit of his son, who deposed that he was present and heard the conversation between the two attorneys above referred to and that defendant’s attorney stated to the plaintiff’s that he was not going to remain at Independence but was going to Kansas City, and asked plaintiff’s attorney to go with him, and that the latter stated that he did not intend to leave until the case was ready and that if the former wanted to go he could do so but that he would have to use his own judgment about that and take his chances on the case coming up. The plaintiff filed the affidavits of two other attorneys not connected in any way with the case and who deposed that the attorney for the defendant, immediately after the colloquy took place between him and plaintiff’s attorney, referred to in said affidavits, left Independence with them on an electric car for Kansas City, and that on the way the defendant’s attorney had a conversation with them in which he, in substance, stated that he “had a suit pending there that day, that was called for trial on that day; that he didn’t know whether it would be reached or not; that he wasn’t prepared for trial; that his client was in Kansas City and that he had no witnesses there; that he took his chances on its being disposed of; that he didn’t have much faith in the case, and that he didn’t care much for the case any way.
As the attorneys for both plaintiff and the defend
It has been already seen that the defendant’s answer, which was on file when the judgment was given, contained a general denial and a plea to the jurisdiction of the court. If the defendant had intended to rely for Ms defense on the fraudulent representations set forth in the affidavit of his attorney as a defense on the merits, it is strange he did not plead such facts instead of that of the general issue. He could have joined in Ms answer a defense to the merits with a plea to the jurisdiction. It is now the well-settled rule of pleading that matters in abatement and bar can be united in the same answer. The statute contemplates but one answer, which must contain whatever defenses the defendant may have. Little v. Harrington, 71 Mo. 390; Byler v. Jones, 79 Mo. 261; Christian Ass’n v. Dubach, 82 Mo. 475; Cohn v. Lehman, 93 Mo. 574; Nichols v. Stevens, 123 Mo. 96.
The case is to be distinguished from one where the judgment by default is entered for want of appearance ■or answer. Here the defendant did appear and answer. His answer was on file at the time of the judgment. The plea in abatement therein contained was practically ■disposed of by the replication.
The only answer defendant made to the plaintiff’s petition was a general denial. If he intended to rely on the affirmative defense of false and fraudulent representations, as set forth in the affidavit of his attorney, why did he neglect to plead it up to the very time the case was called for trial? After his plea in abatement ceased to be available to him as a defense, and before the time the case was called for trial, he had ample time to file an amended answer if he had‘cared to do so, setting up his affirmative defense of fraud, but instead of doing so he voluntarily elected to permit the whole
In sucb cases as tbis, courts bave a very wide discretionary power wbicb ought to be exercised in sucb a way as to promote tbe ends of justice as far as possible. But it would be very unsafe for tbis court to undertake to revise tbe errors of tbe trial courts in tbe mere* exercise of tbeir discretion and it ought not to be done except in cases where mamfest injustice has resulted from tbeir action, and we are not prepared to say that sucb is tbe fact in tbis case. Florez v. Uhrig, 35 Mo. 517; Pry v. Railroad, 73 Mo. 124; Judah v. Hogan, 67 Mo. 252; Tucker v. Ins. Co., 63 Mo. 588; Griffin v. Veil, 56 Mo. 310; Jacob v. McLean, 24 Mo. 40; Robyn v. Chronicle Co., ante.
III. Tbe defendant further contends that tbe petition fails to state a cause of action. It plainly appears from tbe allegations of tbe petition, tbe substance of wbicb was stated at tbe outset, that tbe action is on tbe obligation in that part of tbe deed by wbicb tbe defendant assumed to discharge tbe mortgage note given by plaintiff to Harvey. It is true that in addition to the allegations of tbe petition just referred to, there were others stating (1) that plaintiff bad paid off tbe judgment; (2) that be bad taken an assignment thereof to himself, and'(3) that be bad attached a true copy of sucb judgment to the petition, but these allegations were mere redundancies and could bave been reached by special demurrer or motion to strike out; but the petition with or without them, states a good cause of action on tbe defendant’s obligation of assumption. While these redundant allegations show that tbe judgment has been paid, and therefore extinguished, they also show that defendant failed to comply with his obligation of assumption and for that reason was liable thereon to plaintiff.
Tbe effect of tbe obligation of assumption was to
We discover no sufficient reason for disturbing the judgment, which must accordingly be affirmed.
