173 Mo. App. 414 | Mo. Ct. App. | 1913
—An action was brought by the plaintiff, as we gather from the statements of the appellant and the respondent, to recover $4000 from the . defendant as damages .on account of personal injuries received while in the employment of the defendant as night sawyer in its stone saw mill, which injuries were occasioned by defective machinery and appliances negligently permitted by the defendant to become out of repair and dangerous, and rendering the place in which plaintiff was required to work unsafe.
The case was returnable to the November term, 1911, when a firm of attorneys, representing an insurance company, which it appears had indemnified the defendant, as it claimed, on account of accidents of the character involved here, filed in behalf of the defendant a demurrer to the plaintiff's petition and a motion for security for costs. A controversy having .arisen between the insurance company and the defendant, the plaintiff voluntarily continued his case until the February term, 1912, to give the defendant and the insurance company an opportunity to adjust their differences. At the February term of court, 1912, it appears that the controversy between the insurance company and the defendant culminated in the withdrawal from the ease of the attorneys who had filed the demurrer and the motion for costs. On the first day of April, 1912, the last day of the February term, the court overruled the demurrer to the petition and gave the defendant until on or before May 25, 1912, in which to plead. No further pleadings were filed by the defendant. The case was set down by the clerk in vacation for trial at the June term of court for June 13, 1912.
It appears that a short time, before the date on which the case was set for trial the attorney for the plaintiff called the attention of the general manager of the defendant to that fact and was advised by him that he would not have a thing to do with the case.
The docket for the November term of court was printed, as is customary, and showed this case set for December 2, 1912, at which time the defendant having made no further- appearance in the case, plaintiff offered his proof and the court again entered judgment in his behalf for $3000. On December 5, 1912, the defendant filed its motion to set aside the said last judgment, which motion the court overruled, and after an unsuccessful motion for a rehearing the defendant has brought the case to this court for review but has not favored us with a copy of the petition upon which the cause of action is based, but as no point is made by the respondent upon that question we shall decide the case as it is presented here.
There is, as we understand this case, but one point for consideration and that is as to what the defendant understood, or should be held to have understood, at the time the first judgment against it was set aside and its diligence thereafter.
At that time the manager of the defendant claims that he understood that the plaintiff’s attorney had dismissed the case. Defendant’s manager says that he and plaintiff’s attorney went to the courthouse where the court was then in session and that the plaintiff’s attorney approached the judge’s bench,
The plaintiff’s attorney testified that the transaction did not take place in any such manner as detailed by the defendant’s general manager, but that the manager of the defendant company accompanied him to the judge’s desk and there the manager stated to the court that they desired to have the judgment set aside, to which the attorney did not object, and that the court did set aside the judgment.
The plaintiff’s attorney is not uncorroborated as the judge of the court, before whom all of these proceedings were had in this case, when passing upon this motion made a. statement as to what he distinctly remembered as having taken place when this judgment was set aside, wherein he stated that the manager came up to the desk with plaintiff’s attorney; that plaintiff’s attorney requested the court to turn to that particular case on the docket and let the record show that the judgment was set aside on application of the defendant; that a statement was. then made about giving the defendant a trial; and that all of this- took place within the hearing of the defendant’s general manager.
As stated by Judge Nixon, in the case of Parks v. Coyne, 156 Mo. App. 379, 391, 137 S. W. 335. “It must be borne in mind, however, that these cases involving the wisdom of the 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 rules of conduct that will fit any certain number or character of cases.”
The record in this case discloses that at some time before final judgment was entered the plaintiff offered to take a very much less amount than that given in the. judgment. However, the record further discloses that before entering the default judgment, on two occasions, the trial judge heard testimony as to the amount of damage and injury sustained, none of which is preserved in the bill of exceptions brought here. There being nothing by which we could determine the extent of the injury and the trial judge after twice hearing the evidence having fixed it at $3000, we can only assume that his finding was warranted by the testimony before him.
The judgment of the trial court is affirmed.