This was an action on a promissory note brought by O. M. Munroe against the defendants. The plaintiff had judgment in the circuit court, and upon- motion to set aside said judgment being overruled, defendants appealed. •
The note sued on is in words and figures as follows :
*127 “$16 (Red)
$385 “Fenton, Mo. Sept. 22, 1904.
$401 (Red)
“Six months after date I promise to pay to O. M. Mnnroe of Jefferson Connty Bank of De Soto, Mo., or order, three hundred eighty-five dollars, for value received, with interest from date at the rate of eight per centum per annum until paid, and I agree to pay same at Jefferson County Bank of De Soto, Mo.
“Principal: James P. Dotjgherty,
“Securities: C. Dougherty,
“E. J. Dougherty.”
This suit was instituted on the above promissory note before a justice’s court in St. Louis, Missouri, and judgment was rendered in said court in favor of the plaintiff and against all of the defendants, on October 6, 1913, at which time all of the defendants appeared in person and by their attorney. Thereafter, on the 15th day of October, 1913, all of the defendants took an appeal to the circuit court of St. Louis, having filed proper affidavit and appeal bond, and thereafter, on the 29th day of November, the defendants paid the docket fee of the circuit court of St. Louis, and duly filed therein a transcript of all the proceedings before the justice’s court, and the said cause was duly assigned to division 6 of the said circuit court. Thereafter, on April 20, 1914, the case was called for trial in division 6 of the circuit court of St. Louis. The plaintiff was present and ready for trial, but the defendants did not appear, although called; whereupon plaintiff, waiving a jury, submitted his case to the court, introduced his evidence and proofs, ánd the court having heard and duly considered the same, found in favor of the plaintiff and against the defendants, and rendered a judgment against the defendants in the sum of $531.30.
Thereafter, on the 21st day of May, 1914, and at the same term of court at which the above-named judgment was entered — that is, the April term, 1914, the separate motion of James P. Dougherty was filed
“Comes now James P. Dougherty and for his separate motion to set aside a default judgment heretofore granted in this case on April 20, 1914, respectfully shows to the court that he had no notice or knowledge of the setting of this case on the said April 20, 1914, or any other such time.
“That he employed or believed he employed W. Gr. Carpenter as his attorney to look after and take charge of the said case, for him to appear therein and act as attorney, and to represent him in said cause, but the said W. G-. Carpenter did not so understand that he was so employed, hence failed to look after the matter and the said' cause was not properly cared for on his part’.
“That the said James P. Dougherty so filing this motion appealed from the judgment of the justice of the peace against him as rendered on the sixth day of October, 1913, for four hundred and forty-two dollars and twenty cents beca,use he believed he had a just and meritorious defense to said cause of action, in that he has records of payments made on the said-note which go to reduce the amount from the amount of the judgment so rendered against him and your petitioner herein respectfully represents to the court that the judgment as rendered herein against him for five hundred and thirty-one dollars and thirty cents ($531.30), being eighty-nine dollars and ten cents ($89.10) greater than the judgment rendered against him in the justice’s*129 court, lias deprived him of still further aud additional credits which should he applied upon the said note as herein filed; that your petitioner has book records of the payments which should be so applied on the said note and none of which are herein credited; all of which are good and valid matters of defense of which petitioner should not be deprived; and your petitioner further respectfully shows that the judgment as rendered by the court upon his failure to appear, his course of action should have been to dismiss the appeal or affirm the judgment of the justice’s court, that this court has no right of jurisdiction to hear anew. This course of action to make another or different finding from the justice’s court on default of its appellate worth.
“Petitioner prays that the said default judgment so granted be set aside and defendant .granted a new trial herein.
“James P. Dougherty.
“State of Missouri, City of St. Louis.}ss
“Subscribed and sworn to before me this 18th day of May, 1914.
(Seal) ' “W. Gr. Carpenter,
“Notary Public.” -
The joint motion of E. J. and Cornelius Dougherty to set aside the judgment was as follows:
“Comes now Cornelius Dougherty and E. J. Dougherty, defendants in the above-styled cause, and implore the court to set aside the default judgment granted against them on April 20, 1914, for the following reasons, to-wit:
„“The said petitioners herein had no knowledge or notice of the setting of this said case or the trial of same, but understood that they had employed an attorney, ‘W. G-. Carpenter, to appear for them, look after and take care of their interests In said cause, but the said W: Gr. Carpenter did not so understand said employment, did not understand that he was to take care*130 of their interests and so did not give proper attention to the ease and the same was called and heard without any notice or knowledge of these defendants.
“That these defendants have a good and valid defense to the claim of plaintiff in the following manner, to-wit: That said note which is the basis of this action they had signed as suretites for defendant James P. Dougherty, which note was made and executed on the 22nd day of September, 1904, and was to become due six months after date. That the said note has, without their consent and without their knowledge, received many and various extensions thereon, at many and various times since the said September 22, 1904, and at no time were they ever consulted nor did they ever give their consent to such extensions, but at all times they refused to consent because at that time the principal of said note, James P. Dougherty, could have paid same.
“That the said extensions have operated against these petitioners and they should not now be held liable on said note; further, your petitioners respectfully state that the judgment as rendered in this cause on April 20, 1914, has failed to give the proper and necessary credits which should be applied upon said note; that the amount so rendered is larger than is now due or owing on said note, and that book entries of other payments on said note are available to be used as evidence. Further, these petitioners show the court that they are appellants in this cause, having appealed from the- judgment of the justice rendered on the sixth day of October, 1913, which said judgment as rendered against them was for the amount of four hundred and forty-two dollars and twenty cents; that the judgment as rendered by this court on April 20, 1914, for five hundred and thirty-one dollars and thirty cents is another and different judgment from that rendered by the justice; that this court has no right'of jurisdiction under the statutes of the state of Missouri, where default is made by appellant, to do other than affirm the judgment of the justice or dismiss the appeal.
*131 “Wherefore, petitioners herein pray that the said judgment by default be set aside and that they be granted a hearing in this cause.
“0. Dougherty.
“ State of Missouri, City of St. Louis.}ss
“C. Dougherty, being duly sworn, upon his oath states that the facts and matters set forth in the foregoing are true to the best of his information and belief.
“0. Dougherty.
“Subscribed and sworn to before me this 18th day of May, 1914.
(Seal) “W. G-. Carpenter,
“Notary Public.”
It is contended by the defendants that the lower court ought to have set aside the judgment rendered by it on the ground that the same was due to a mistake in defendants believing that they had employed counsel and in counsel believing that he had not been employed, and that all of the defendants had good and valid defenses to the note sued on, and that the court, in overruling said motion, abused its discretion. The defendants further contend that the circuit court was not warranted in hearing the case and rendering a judgment upon the failure of the defendants to appear, but ought simply to have dismissed .the appeal or affirmed the justice’s judgment, it appearing that the judgment of the circuit court was some $89.10 more than the judgment procured by the plaintiff in the justice’s court
The defendants have presented the case in this court as if the judgment, of which they complain, was a default judgment.. Strictly speaking, the judgment rendered in the circuit court on April 20, 1914, was not a default judgment. [Armstrong v. Elrick,
In Parks v. Coyne, 156 Mo. App. l. c. 391,
“The authorities in this State are unanimous 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, and that both these things must appear so clearly as to make -it manifest that the refusal of the trial court was arbitrary. [Robyn v. Publishing Company, 127 Mo. l. c. 390, 391,30 S. W. 130 ; and case cited; Hoffman v. Loudon, 96 Mo. App. l. c. 189,70 S. W. 162 ; Welch v. Mastin, 98, Mo. App. l. c. 277,71 S. W. 109 ; Plart v. Handlin, 43 Mo. l. c. 171; Florez v. Uhrig’s Adm’r., 35 Mo. l. c. 519.]”
In examining the defenses set forth in the motion of the defendants, we -believe that some of them at least were meritorious. Certainly the defense that more had been paid upon the note than appeared from the indorsement thereon was a valid and meritorious one. Even though the plaintiff has died since the trial of this case, and the defendants would be incompetent to testify, as argued by plaintiff, it would not necessarily be impossible for the defendants to prove further payment upon the note in suit by other witnesses or other competent testimony. But, after much consideration, this court has reached the conclusion that it is unable to say that • the trial court abused its discretion when it failed to set aside the judgment, because it does not fully and plainly appear that the defendants were warranted in believing that they had employed counsel to look after their interest, and it does not
The motion of each of the defendants, as set out heretofore, simply states that they employed or believed they employed W. G. Carpenter as their attorney to represent them, but that he, W. G. Carpenter, did not so understand that- he was employed. No evidence was offered to the trial court on the subject, or, at any rate, none is preserved in the record. If, as a matter of fact, the defendants had employed an attorney, and he had neglected to look after the case, his neglect would have been their neglect. [Welch v. Mastin,
We believe, therefore, that, before we could say that the lower court abused its discretion in failing to set aside the judgment, the facts ought to have appeared, either in the motion or in the evidence, which would have disclosed that the defendants really were warranted in believing that they had employed or.retained Mr. Carpenter. Especially is this true, as ■ indicated above, when it appears from their own motion and affidavit that Mr. Carpenter did not believe that he was so retained or employed.
Especially, also, should all of the facts have been set up, in view of what is said in 23 Cyc., 934 and cases cited thereunder, where the following rule is announced:
“A defendant cannot ordinarily procure the setting aside of a judgment against him on the ground of his mistaken belief that he has obtained an attorney to protect his interests; he must see to it that the attorney understands and accepts the retainer; otherwise, his failure to see personally himself to the case is inexcusable.” See, also, the following cases: Howell v. Glover,65 Ga. 466 ; Finlayson v. American Acc. Company,109 N. C. 196 ; Davis v. Darling,20 Texas, 803 .
It is further contended by the defendants that, upon their failure to appear in -the circuit court, the court ought to have either dismissed their appeal or to have affirmed the judgment of the justice’s court: We can
The statute (section 7579, E. S. 1909) provides:
“Upon the return of the justice being filed in the clerk’s office, the court shall be possessed of the cause and shall proceed to hear, try and determine the same anew, without regarding any error, defect or other imperfection in the original summons or the service thereof, or on the trial, judgment or other proceedings of the justice or constable in relation to the cause. ’ ’
It is true that section 7584, Eevised Statutes 1909, provides that, where appellant fails to give notice of appeal at least ten days before the second term of the appellate court after the appeal is taken, the judgment should be affirmed or the appeal dismissed at the option of the appellee. But this statute is not -intended to deprive, and does not deprive, the appellee of the opportunity, if he sees fit, to waive notice of appeal and enter his appearance in the circuit court, and of having the cause tried de novo. The purpose of serving notice of appeal upon the appellee is to confer jurisdiction on the circuit court over the person of the appellee, and if such jurisdiction is given by waiver of notice and entry of appearance on the part of the appellee, then the court has the same right to try the ease de novo as it has to try any case of which it has original jurisdiction and in which all the parties are before the court.
“The service of notice of the appeal, however, was indispensable to the conferring of jurisdiction over the person of the appellee, unless waived by the voluntary appearance of the latter. [Drake v. Gorrell, supra; Rall v. Cummings,117 Mo. App. 312 ,93 S. W. 864 .] That the notice was waived by appellee, by going to trial on the merits, there can be no doubt. Any act whatsoever which implies that the appellee is in the circuit court for general purposes constitutes a waiver of the notice of appeal and confers upon the court jurisdiction as to the person of appellee. [Leeper v. Carter,137 Mo. App. 617 ,119 S. W. 463 ; Ford v. Gray,131 Mo. App. 240 ,110 S. W. 692 ; Morgan v. Lumber Company,105 Mo. App. 239 ,79 S. W. 997 ; Payne v. Railroad,75 Mo. App. 14 ; Parmerlee v. Williams,71 Mo. 410 ; Page v. Railroad,61 Mo. 78 ; Deathley v. Patter,29 Mo. App. 222 ; Bates v. Scott,26 Mo. App. 428 .]”
In Wolf v. Coffin,
In Daugherty v. Perky,
“The -giving of such notice [of appeal] is jurisdictional. The notice is analogous to a summons— is a statutory means by which the appellee is called upon to appear in the circuit court and submit himself to its jurisdiction. That court becomes possessed of jurisdiction. over the cause by the filing of the transcript and papers by the justice, but acquires jurisdiction over the person of the appellee by the service of notice of appeal. Though jurisdiction of the cause has been lodged in the circuit court, jurisdiction of the person of the appellee must be obtained, either by service of the statutory notice or by his voluntary appearance in court.”
Munley v. King,
To the same effect is the case of Carroll v. Hancock,
In Riddle v. Gillespie,
It is clear, therefore, from the foregoing authorities, that in case of appeal from a justice’s court to the circuit court, when no notice of appeal is given by the appellant to the appellee, the latter has the right to demand an affirmance of the judgment of the justice or a dismissal .of the appeal, if he sees fit to move therefor, hut when the appellee voluntarily enters his appearance in the circuit court, the cause is then before the court and it has the power, under the statute,' to try the case de novo and render such judgment as it may see fit.
In the case at bar, the appellee, when the case was called for trial in its regular order on the trial docket, announced himself ready, and thereby entered his appearance generally in the cause,' and the circuit court