Stout v. Lewis

| Mo. | Mar 15, 1848

Scott, J.,

delivered the opinion of the Court.

This was an action of assumpsit on a bill of exchange, brought by the appellees against the appellant, on which they recovered a judgment on a trial which took place in his absence and that of his counsel.

After verdict, a motion was made to set it aside on the affidavits of the appellant and his counsel, which substantially stated that the appellant, with his counsel, was in attendance at the opening of the court until another cause was taken up for trial, which was unexpectedly terminated by a compromise; that the appellant had been advised by counsel that he had a good and meritorious defence to the action. That his counsel left the court house when the other trial was progressing, to see his sick family, and was assured that the trial of the cause would proceed, and whilst the counsel of the defendant was addressing the jury in anticipation of the defence. That afterwards,' the trial was suddenly arrested by a compromise in the midst of it.

This Court has repeatedly held parties to suits to the negligence of their counsel or attorneys. If parties were not responsible for agents voluntarily chosen by themselves, it would scarcely be possible to get along with the business of courts. A door would be opened to collusion between a party and his attorney, which would place the opposite party entirely at their discretion. When the courts act affirmatively and grant relief against the act, omission or neglect, this Court will not interfere. Such relief operates .merely as a delay at most, and that delay may as well be borne in the court below as in coming to this court for redress. The case is different when the court below refuses to interfere. There the party is remediless, and cases may arise where this court will interpose. This is never done, however, without great reluctance, as it is obvious that, in matters of this kind, the court possessing original jurisdiction enjoys advantages for determining them far superior to those enjoyed by this court. Any one the least conversant with the administration of justice in courts of original jurisdiction, must be aware of this. These motions are addressed to the sound discretion of those courts, to be liberally exercised in furtherance of justice. A wise Judge has said, that it is not alone sufficient that justice be administered, but it must be administered in a manner satisfactory to suitors. An indiscriminate interference by this court with matters of pure discretion in the courts below, would, in the end,.be productive of more injustice than a refusal to interfere in any case. In the review, justice might sometimes be done, but in the most of them it would be little more than a groping in the dark, in which the court could not satisfy itself whether it was doing right or wrong. These considerations have induced us to let some seemingly hard cases pass undisturbed, not that we approved them, if they were below as they appeared to us in paper, but because there might have been circumstances influencing their determination which cannot be spread upon the record. Some time since, a case was here in which a judgment for a large sum was rendered against a party by reason of the neglect of his counsel to make his defence, and afterwards, on a motion for a new trial, a receipt was produced by which it appeared that nearly the whole amount had been paid, and yet the motion was refused. Now, surely, the neglect of the counsel of the party against whom the judgment was rendered, should not have induced the court to let the opposite party perpetrate a gross fraud. The facts in this case show sufficient diligence, and the cause will be reversed and remanded,

Judge Nafton concurring.