156 Mo. App. 379 | Mo. Ct. App. | 1911
This suit Avas.instituted on August 7, 1905, in the circuit court of Jasper county by Wilda Parks against M. W. Eundell and Thomas Coyne. The relief sought Avas damages in the sum of $4500 alleged to have ensued by reason of the death of plaintiff’s husband, Eobert Parks, on August 30, 1904, while working in the Mary Louise mine near Webb City as a servant of
Defendant’s motion to set aside the default judgment alleges' that the suit was originally filed in the circuit court at Joplin on the-day of-, 1904, against M. W. Rundell, Thomas Coyne and the Mary Louise Mining Company; that he, Coyne, did not employ an attorney to represent him, but that A. E. Spencer, who was attorney for the insurance company carrying a policy for the defendant, Rundell, appeared in the cause and filed an answer for all of the defendants, including Coyne, and took charge of the defense of said cause. “That on January 19,1905, the said Spencer filed an amended answer for all of the defendants in said cause. That on the 20th day of January, 1905, said cause was tried before a jury and the said A. E. Spencer appeared as the attorney for all of the defendants, and W. J. Owen and A. L. Thomas as attorneys for the plaintiff. That after the plaintiff’s evidence was all in the court sustained a demurrer thereto and plaintiff took a non-suit with leave to move to seat the same aside and that said judgment was a final judgment in favor of the
“That thereafter, on the 7th day of August, 1905, this suit was filed in the circuit court at Carthage and was brought by the same plaintiff against the same defendants, M. W. Rundell and Thomas Coyne, and was for the same cause of action that was tried in the circuit court at Joplin as above described for the death of plaintiff’s husband by the negligence of the defendants on the 30th day of August, 1904. * * - * That on the 18th day of February, 1907, the plaintiff filed in said cause an amended petition against the said Thomas Coyne and M. W. Rundell. That on November 18, 1908, said cause was continued by agreement of parties over the November term of court. That the said Coyne did not employ an attorney to represent him in said cause for the reason that A. E. Spencer who was representing the defendant, M. W. Rundell, through the insurance company which carried a policy on the mine, had represented the defendant, Thomas Coyne, in said suit at Joplin, and this' suit, being for. the same subject-matter, and between the same parties, and this defendant, Thomas Coyne, having learned that the cause had been continued in the said court from time to time, took it for granted that' the said A. E. Spencer was giving this cause the necessary attention and the same attention that he had given to the cause above referred to pending in the circuit court at Joplin, and that this defendant, Thomas Coyne, would be notified when the cause should be for trial by the said A. E. Spencer who had given him the notice from time to' time in'the other suit. That he had been advised by'the said A. E. Spencer that he would not need to employam
“This defendant further states that he was advised by A. E. Spencer in the spring of 1908, at the time of the settlement in the Joplin circuit court of the suit of Nellie Rogers against the same parties that A. L. Thomas, attorney for the plaintiff in this suit, was desirous of making a settlement of this suit, and that this defendant at the request of the said A. E. Spencer called upon the plaintiff in this suit and she offered to take $400 in settlement of the claim in this suit, and that he made report of the offer to the said A. E. Spencer, attorney for the insurance company, and presumed that the offer was still pending to compromise said suit and heard nothing further from said cause until Monday afternoon, November 16, 1908, when he was advised that the suit had been dismissed as against M. W. Rundell and a judgment taken against him by default for the sum of $2000, which said facts are fully set out in the affidavits herewith filed.
“And defendant further states that he has a good and meritorious defense to the cause of action stated in the petition of plaintiff, to-wit,—that the accident which caused the death of Robert Parks, the plaintiff’s husband, occurred on August 30, 1904, and that on the 1st day of August, 1904, the defendant, Thomas Coyne, sold all of his interest in the said mine to M. W. Rundell, trustee, and had nothing to do with the management of said property after the sale. That he did not employ the .men and did not have charge of the work of mining that
“Wherefore, this defendant prays the court to set aside the judgment of default entered against him in said cause and permit him to make his defense therein for the reasons herein stated and shown by the affidavits herewith filed.”
Coyne’s affidavit filed in support of this motion is in part as follows:
“Affiant states that on the 1st day of August, 1904, he sold all of his interest in the property, mine and mill, of every kind and description, at which plaintiff’s husband was afterwards.killed, to M. W. Rundell, trustee. That from the 1st day of August, 1904, this affiant had no interest whatever in said property and was not connected therewith in any manner' and did not have charge of the work nor of the men nor of the mill but was engaged in mining elsewhere. That on the 30th day of August, 1904, when it is alleged by plaintiff that her husband was killed in the mine, this affiant had not had any interest in the same for thirty days, neither as owner, operator or superintendent, ground-boss, or otherwise. That all of his interest therein ceased on the said 1st day of August, 1904.
“This affiant further states that on the-day of December, 1904, a suit was filed in the circuit court at Joplin by this same plaintiff against M. W. Rundell and the Mary Louise Mining Company and this affiant, and that at the time of the accident the said M. W. Rundell was carrying an insurance policy upon said mine and men and that one A. E. Spencer, an attorney at Joplin,
• ' After stating the circumstances attending the refiling of the suit up to the filing of the amended petition in February, 1907, the affidavit Continues: - '
“This affiant states that he never employed an attorney in said cause but was led to believe from the fact that said A. E. Spencer had looked after his interest in the suit at Joplin between the same parties -and for the same cause of action without charge to him, and did believe that the said A. E. Spencer was giving to this suit all necessary attention. That on the 18th day of November, 1907, as shown by the record of this court, this cause was continued by agreement of the parties over the term. That this affiant had no attorney, employed and no one to look after his interests other than through the supposed
“That this affiant had been led to believe by the conduct of the said A. E. Spencer in the other suit at Joplin and the fact'that he had notified him that this cause had been continued and had' requested him to ap* proach the plaintiff for a settlement as aforesaid all of which affiant did, he Avas led to believe that the said A. E. Spencer Avas doing everything that was necessary to protect his interests in the said cause and that he
“Affiant further states that he does not believe the plaintiff has any cause of action against him upon which She can recover, and that he had a good and meritorious defense against said claim of plaintiff. That he is ready and willing to file his answer herein and to try the said suit and not delay' the rights of the plaintiff herein. He states that he is willing and ready to try said cause
A. E. Spencer, the attorney, did not testify nor was his affidavit filed.
Julius Wheeler in his affidavit states that defendant, Coyne, sold his interest in the Mary Louise mine on or about the 1st day of August, 1904, and that immediately after the sale, the sign,—“Mary Louise Mining Company,” was taken off the derrick; that within one or two days after Parks was killed, he was employed by Norris Ashcraft as ground foreman and went to work in the mine as ground foreman. That he was paid his wages after Coyne sold out by checks signed “M. W. Rundell, Trustee.” That after Coyne sold out to Rundell, he never at any time saw him undertake to direct the underground workings or the men who were working in the ground.
Defendant also offered the affidavit of Ed. Foster who stated that in the spring of 1908 he went with Coyne to see plaintiff, Wilda Parks; that Coyne told her he came to see her about a settlement of her claims against Rundell for damages and had been sent there by Mr. Spencer, the attorney for the insurance company, that he thought they might pay three or four hundred dollars, and that he would submit the matter to Mr. Spencer. That Mrs. Parks seemed willing to make a settlement and after they had had some conversation Coyne said he would submit the matter to Mr. Spencer and see what could be done; that he thought he could get them to pay three or four hundred dollars.
' Plaintiff filed the affidavits of John Morse, George Whitehouse, J. B. Davis and Wilda Parks. Morse stated that he worked in the Mary Louise mine where Parks was killed; that from the time Coyne sold his interest in said mine on August 1, 1904, to Rundell, he (Coyne) was superintendent and manager of said mine. That at the end of the week during which Parks was killed, affiant and other workmen t were “docked” by Coyne a quarter of a shift for the time consumed' by them in taking out the dead body of Parks. George Whitehouse stated that he was boarding with Wilda Parks in the spring of 1908 when Coyne was there to see her; that he was in the opposite room and heard part of their conversation; that he heard Coyne ask her if she would sign certain papers, and that he heard the papers rattling ; that he told her that if she would sign the papers he would insure her so much or would return the papers; that she said she could not do it, that she would not sign any papers, that she had her case in the hands of her lawyers, and that he would have to settle with her lawyers; that it was in their hands for settlement. The affidavit of J. B. Davis was substantially the same as that of Morse. Wilda Parks stated that Coyne came to see her iu the spring of 1908 and told her if she Would sign some papers he had in his pocket he thought he could get her $300, and if he could not he would bring them back to her; that she told him to see her lawyers; that she did not tell him she would take $400.
Coyne took the stand and testified that he had no papers with him when he went to see the plaintiff.
It may be stated here that the prayer of plaintiff’s petition was for $4500 and costs whereas the default judgment was for $2000. If any evidence was introduced to assist the court in fixing the plaintiff’s measure of damages at $2000 it is not preserved in this record and appellant states that there is no record that any evidence was offered although this division of the court was at all times provided with a stenographer.
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 Co., 127 Mo. 1. c. 390, 391, 30 S. W. 130, and cases cited; Hoffman v. Loudon, 96 Mo. App. 1. c. 189, 70 S. W. 162; Welch v. Mastin, 98 Mo. App. 1. c. 277, 71 S. W. 1090; Hart v. Handlin, 43 Mo. 1. c. 171; Florez v. Ubrig’s Adm’r., 35 Mo. 1. c. 519.]
The rulings have also been uniform that in showing diligence, it will not be enough for the petitioner to point the finger of blame toward' his own attorney who has neglected to look after his client’s interests; he takes the consequences of his attorney’s neglect as though he had-been the actor. [Welch v. Mastin, supra, 1. c. 277, and cases cited; Robyn v. Publishing Co., supra, 1. c. 391.]
It must be borne in mind, however, that these cases involving the wisdom of trial judges in the exercise of the discretion vested in them by law, are in the nature of things to be considered one at a time, and not as an integral branch of our system of jurisprudence where we can evolve certain rules of conduct that will fit any certain number or character of cases. The facts and cir
The defendant’s fault in this case is not so much that he failed to procure the services of an attorney to represent his interests, but it lies in his mistaken belief that he had an attorney when he had none. We have given the contents of the several affidavits presented to the circuit judge a .detailed consideration so as to show how few of defendant’s statements are controverted. Surely defendant’s affidavit cannot be read without leaving the conviction in the mind of the reader that the defendant honestly thought the attorney for the insurance company was looking after his interests in the suit, and that he honestly intended to resist the plaintiff’s claims when the case came on for trial. As his statements in this regard are nowhere controverted, some credence ought to be attached to them. In showing diligence, defendant is not required to establish conduct such as a skilled lawyer would perhaps show; he is only required to show that he acted as a reasonable man would have acted in his situation. It must be remembered in this connection that this case was in the courts for several years; that it had been continued from term to term, evidently by the plaintiff for the purpose of serving Rundell, for it nowhere appears that defendant ever sought delay. It will not be presumed .that Coyne desired a judgment entered against himself; it will be presumed that he knew the law which is that unless he appeared and made a defense judgment would be taken against him and that he knew he should have counsel to represent him in the suit. If the circuit judge gave any weight whatsoever to the uncontradicted statements in defendant’s affidavit, he must have believed that defendant thought he had an attorney. It is certain that A. E. Spencer had undertaken, the defense of the case for some
The evidence abundantly shows that the mine in question was covered by a policy of employers’ liability insurance and that the insurance company, by its attorney, A. E. Spencer, had assumed the defense of these cases. (A man named Rogers was killed at the same time as Parks and that suit was settled.) It is a well known fact that in such cases the attorney for the insurance company defends the action and that the mining company seldom employs counsel, and when it does, he merely assists in resisting the claim of the plaintiff. In this case the parties chose to leave the whole defense to the attorney for the insurance company, and, if defendant’s uncontroverted statements are to be believed, this attorney a different times assured this plaintiff that he need not employ counsel as he would look after this defendant’s interests. What more could be demanded of the defendant?. Did he not act as a reasonably prudent man would have acted in accepting the proffered services of a lawyer of Mr. Spencer’s reputation? Consciously or unconsciously Mr. Spencer abandoned the case; at least, this is an inference that would fairly be drawn from the undisputed facts. The defendant states that he had no notice that this case would be taken up on the
The reason for the strict enforcement of the rule as to the trial court’s discretion in these matters in most of the cases is that plaintiff would suffer expense or delay if the default judgment were set aside. This condition does not exist in this case for'the defendant moved to set aside the default judgment within three days after it was rendered and then agreed' that if the court would set aside he would proceed to trial at that term, of court. “The general rule is that, where the application discloses a good defense on the merits, and a reasonable excuse for delay is shown, and no substantial injury has resulted from such temporary delay, the court should exercise its discretion in favor of the trial on the merits.” [Hall v. McConey, supra, 1. c. 620, and numerous cases cited.] In the same opinion, Judge Gray said: “As said in Bailey v. Taaffe, 29 Cal. 423: ‘The discretion intended, however, is not a capricious or arbitrary discretion, but an impartial discretion, guided and controlled in its exercise by fixed legal principles. It is not a mental discretion,
Here, then, is a case of an honest mistake of fact, with a showing that defendant acted as a reasonable man would have acted, with no inclination to delay the trial or keep plaintiff from her rights. It is not shown that, this case was set for trial on the first day of the term, the day the new judge was seated, or that plaintiff had witnesses present prepared for trial. • With defendant agreeing to proceed to trial at that term of court thei delay was not hurtful. Although defendant was acquainted with plaintiff’s attorneys and had telephone connections in his office and residence, no word same to
As we said in the case of Hall v. McConey, supra, in setting aside default judgments, the courts may impose reasonable conditions. We will therefore reverse the judgment and remand the cause with directions to set aside the default judgment, upon the condition, however, that the appellant pay the costs of the case up to and including the date of the overruling of the motion to set aside the judgment, and, in addition, shall file with the clerk of the circuit court of Jasper county, within thirty days of the date of the filing of this opinion, an answer to the petition, and shall within said time, file with the clerk of this court the certificate of the circuit clerk that said costs have been paid and said answer filed. Otherwise the judgment will be affirmed.
