73 Mo. 123 | Mo. | 1880
This is an action for damages alleged to have been sustained by plaintiff in consequence of the negligence of defendant as a common carrier. The petition was filed on the 15th day of November, 1876, on which a summons issued on the 4th. day of December, 1876, returnable on the 1st day of January, 1877. This summons was returned served on the 11th day of December, 1876. On the 11th day of January, 1877, and on the eleventh day of the term of court, defendant having failed to appear to the action, judgment by default was rendered and a writ of
Upon the state of the record above presented, the first question which arises is, whether the circuit court, in overruling the motions to set aside the judgment by default, acted arbitrarily or oppressively. The solution of this question depends mainly upon the fact whether defendant, in the said motions and affidavit accompanying the same, has disclosed a good reason for not having appeared and filed his answer in time, and whether the defense offered to be made was meritorious. Unless both these matters appear so clearly as to niake it manifest that the trial court, in overruling the motion, exercised its discretion arbitrarily, this court will not interfere. The affidavit filed in support of the motion fails to come up to either of the requirements. It is as follows: “And in support of this motion to set aside the judgment by default, said Carr filed his affidavit, which, in addition to the alleged facts in said motion, charged ‘that he had
(Signed) James Carr.”
This affidavit does not disclose such diligence as would justify us in saying that the trial court, in overruling it on that ground, was guilty of an abuse of its discretion; but if it had shown diligence, inasmuch as it utterly fails to set forth the facts constituting the defense which defendant desires to make, so that the court might determine ■whether such defense was or not meritorious, it might properly have been overruled on .that ground. It is true the affidavit states that it was affiant’s opinion based on information given him by the agents of defendant, that the defense was a good and meritorious one. 'It was for the court and not affiant to determine whether the facts constituted a good defense, and the affidavit, in not setting them out, and in not referring to an answer that did set them out, so as to enable the court to determine the question, was fatally defective. Lamb v. Nelson, 34 Mo. 501;
The only answer which the record before us shows defendant offered to file, is in these words : “ Defendant, for answer to plaintiff’s petition filed in the . , , 7 , , .. , above entitled cause, denies each and all the material allegations in said petition.” Such an answer as this we have held in the case of Edmonson v. Phillips, ante, p. 57, to be no answer.
Defendant, on the 21st day of February, 1877, entered a special appearance for the purpose of objecting to the sufficiency of the service of the summons, and Ming a motion to set aside the default on that ground. It is insisted by defendant that the service of said summons is insufficient, and the court committed error in overruling this last motion. We deem it unnecessary to investigate the question thus raised as to the insufficient service of the summons, inasmuch as the motion filed by defendant on the 18th day of January, 1877, to set aside the default on other and distinct grounds, -was such an appearance as waived any defect in the service of the writ. “ It is a general rule that when a defendant appears and takes any step in a cause preparatory to its defense, without first objecting to the service, the insufficiency of the service is thereby waived.” Peters v. St. Louis & Iron Mountain R. R. Co., 59 Mo. 406. So in the case of Orear v. Clough, 52 Mo. 55, it was held that an appearance to have the cause put at the foot of the docket merely, was such an appearance as to give the court jurisdiction to render a personal judgment against a defendant, though the service really had was none other than an order of publication of notice. Besides this, defendant appeared on the same day and moved to strike the petition of plaintiff’ from the files of the court, which was an appearance to cut up by the roots plaintiff’s cause of action. In addition to this, defendant again appeared in the final and most important stage of the cause and contested with plaintiff the amount of damages recoverable by him, saved his excep
It is also urged that the petition does not state facts sufficient to support the judgment. Stripping the petition of verbiage, and it substantially sets up as ° . , . . the cause ot action that plaintiff had shipped on defendant’s road several car loads of cattle, and that by the contract of affreightment he was also a passenger, charged with the duty of looking after his cattle, and getting them upon their feet when cast or thrown down in the cars, that defendant stopped said train at a water tank at the west end of a bridge crossing Chariton river, for the purpose of taking water, and that plaintiff' was informed by the person in charge of the car, that the train would stop ten minutes; that he alighted from the car for the purpose of looking after his cattle, .and had walked but a few steps when defendant negligently and carelessly, without any warning, started said train suddenly forward, when plaintiff took hold of one of the ladders attached to the car to draw himself up on the ear, when defendant again, without giving warning, carelessly started said cars so violently as to throw plaintiff down on said bridge, and that to save himself in the darkness, from falling through said bridge into the river, he threw out his right hand, which caught the rail, which was run over by the car, causing the injury sued for. The utmost that can be said of this petition is, that it contains a cause of action defectively stated, and such a petition we have always held to be good after verdict and judgment.