Miller v. Crawford

140 Mo. App. 711 | Mo. Ct. App. | 1910

ELLISON, J.

This action was instituted upon a promissory note, and judgment by default, and final, was rendered by the trial court. Afterwards, during the term, defendant filed motion to set aside the judgment and the court sustained it. Plaintiff thereupon appealed 'from that order.

The judgment, being upon a promissory note, was entered in the usual form, reciting the default and that the cause was thereupon submitted to the court by the plaintiff; that the court found the indebtedness existing in the amount of $468.68 and thereupon considered and adjudged that plaintiff recover that amount and have execution therefor.

Plaintiff contends that the judgment under consideration was a final judgment on a promissory note, and that, under the statute, a judgment by default cannot be set aside after final judgment. By section 769, Revised Statutes 1899, “an interlocutory judgment” by ^default is authorized where the defendant has failed to answer within proper time. And by section 770 “such 'judgment may, for good cause shown, be set aside at any time before the damages are assessed or final judgment rendered, upon such terms as shall be just.” In giving effect to the latter section it has been decided that a judgment by default cannot be set aside after a final judgment has been rendered. [Billingham v. Miller, 115 Mo. App. 154; Matthews v. Cook, 35 Mo. 286; Burnes v. Burnes, 61 Mo. App. 612.] And those cases are cited by plaintiff in support of his view.

But do they apply? That statute and those decisions refer, not to a judgment by default merely, but to an interlocutory judgment by default. An interlocutory judgment has been called one which “is given in the middle of a cause, upon some plea, proceeding, or default, which is only intermediate, and does not finally determine or complete the suit.” [3 Blackstone Com. 396.] Such judgments being intermediate, they precede the final judgment and presuppose something to follow before a final judgment is rendered. Such was the character of judgments in the cases cited.

But this case being on a note, the sum being liquidated by the instrument sued upon, final judgment is rendered, under our practice act, at the time the default is entered. Therg is therefore no interlocutory judgment in such instances and those cases do not support plaintiff’s position.

But though the judgment was final and not interlocutory, it was yet one by default, and as such it could be set aside, on proper showing, at any time during the term of court at which it was rendered, or a term to which the application might be continued. [Harkness v. Jarvis, 182 Mo. 231.]

By reference to the cases cited in defendant’s brief, including that just referred to, it will be seen that the trial court is invested with large discretion in determining a motion to set aside a default, especially in granting such motion. In the case at bar, we are satisfied, the circumstances considered, that there was no abuse of the court’s powers.

Defendant has denied plaintiff’s right to an appeal. His position is based on the assertion that no appeal will lie from an order setting aside a judgment by default, citing Breed v. Hobart, 187 Mo. 140, and Crossland v. Admire, 118 Mo. 87. In each of those cases the motion to set aside the default was made before the final judgment was entered. In the former there had not yet been a hearing, after the default, as to the proper amount to charge against the defendant as a stockholder in the insolvent corporation. In the latter the default was rendered and a hearing had as to rents and profits, but, as we gather from the report of the case, the final judgment had not yet been rendered when the motion to set aside the default was made. The motion in each case was before final judgment and they were therefore decided from the standpoint of whether the statute allowing an appeal from an order granting a new trial applied to that state of case.

But where the judgment which is set aside is by default and final, an appeal will lie from an order setting it aside. The statute itself (sec. 806, R. S. 1899) reads: “. . . , or from any final judgment, in the cause, or from any special order after final judgment, . . . .” This clause was doubtless not considered to be applicable to Breed v. Hobart and Crossland v. Admire, as final judgment bad not been rendered in either case. But that- clause has been field by tfie Supreme Court as allotving an appeal on orders made after final judgment; as in a railroad condemnation proceeding, from tfie refusal of tfie court to direct a payment to tfie landowner of tfie amount of the award of tfie commissioners (St. Louis Railway Co. v. Clark, 119 Mo. 357), and in an order setting aside a sale under execution (McAnaw v. Matthis, 129 Mo. 142) ; and by the St. Louis Court of Appeals, from an order for a yearly allowance of dower (Young v. Thrasher, 61 Mo. App. 413). In Scott v. Smith, 133 Mo. 618, a final judgment was rendered against tfie plaintiff on acount of his nonappearance at day of trial. He afterwards, during the term, filed his motion to set aside tfie judgment and it was sustained and tfie defendant appealed. No doubt of the right of appeal was expressed.

Tfie judgment is affirmed.

All concur.