10 Mo. 495 | Mo. | 1847
delivered the opinion of the Court.
This was an action of ejectment, brought by Julie Laurent and others against Charles Mullikin, in the St. Louis Circuit Court, on the 29th October, 1845. On the 25th November, judgment by default was taken, and an order made for the assessment of damages at the same term. On the next day, the defendant filed a motion to set aside the judgment of default and the order for the assessment of damages, supported by affidavits. On the 11th December following, the defendant’s motion was overruled, and a jury was empanelled, who assessed the damages, and the plaintiff had final judnment therefor and an award of execution. On the 13th of the Same month, another motion, setting out the reasons therefor, and accompanied by affidavits in support thereof, was filed by the defendant, to set aside the judgment on the assessment, the assessment of damages, and the judgment by default, which was by the court sustained, and the same set aside, to which the plaintiff excepted: On the 12th February, 1846, the plaintiff suffered a non-suit, -and filed his motion to set the same aside, which, on the 28th of said month, was by the court overruled; to the overruling of which the plaintiff excepted, and has brought his case here by writ of error, to reverse the judgment of the Circuit Court.
The only question presented for our consideration is, whether the Cir
The affidavits are voluminous, and need not be copied. They show that counsel was employed in due time to defend the suit — that the judgment by default was taken in consequence of the failure of the attorney to plead within the time fixed by law — that the assessment of damages was made in the momentary absence of the attorney, who had been constantly in court for several days awaiting the calling of the case — and that, in the opinion of the defendant and his attorney, 'the defendant has a meritorious defence to the action. A counter affidavit was filed by the plaintiff’s attorney, controverting some of the statements made by the defendant and his attorney.
The setting aside of judgments, and the granting of new trials, are by law properly vested in the Circuit Court. They are discretionary powers, to be soundly and not capriciously exercised, for the furtherance of justice. In the facts of this case, we do not find any reason to question the correctness of the action of the Circuit Court; on the contrary, we are of opinion that, under the circumstances, the court exercised its discretion soundly in setting aside the judgment.
To authorize the court in reversing a judgment of this character, a very strong case would have to be made out: it must appear apparent that the court had egregiously erred or had acted under the influence of improper impulses, for our experience and observation teach that there is but little danger to be apprehended from an undue exercise of this power, on the part of the court; besides, if the party complaining has really a right to recovery, the presumption is that he will obtain his rights in a more ready and speedy way, by another trial in the Circuit Court. If the judgment set aside was wrongfully obtained, then the court, in sitting it aside, has discharged only its duty.
The judgment of the Circuit Court ought to be affirmed, and the other Judges concurring herein, the same is affirmed.
This case is different from those of Field & Cathcart vs. Matson, 8 Mo. Rep., 686, and others, involving the same principle. In the case above mentioned, the court below refused to relieve against the neglect of counsel, and this Court sustained its action. The action of the court be