Lawler v. Bashford-Burmister Co.

ROUSE, J.

(after stating the facts).—The first thing for us to determine in this case is, Was there a default .on the part, of defendants Lawler & Wells at the time the motion for judgment was made? The term “default,” when used in *99 practice, is defined by Bouvier to be “the non-appearance of a plaintiff or defendant at court within the time prescribed by law to prosecute his claim or make his defense.” 1 Bouvier’s Law Dictionary, 445. The record shows that defendants were in court, and active in trying to bring the case to trial; that they had filed in court the written evidence of their title to said property, and had given plaintiff notice thereof. Hence, under said definition, they were not in default. The term, when applied to a defendant, is frequently (and indeed commonly) used in a much wider sense; and a failure to enter a plea, answer, affidavit of defense, etc., as well as for want of an appearance, is included in the definition thereof. 1 Black on Judgments, sec. 80. If there was an appearance on the part of defendants, as above defined, there was no default in this case, and the motion for judgment should have been overruled.

Chapter 2 of title 61 of the Revised Statutes provides that when a party claims property levied upon by a sheriff, by making a certain affidavit and executing a certain bond, the sheriff shall deliver the property to the claimant, and the sheriff shall return said affidavit and bond to the proper court, and the clerk thereof shall docket the case in the name of the plaintiff in the writ as plaintiff, and the claimant of the property as defendant; that at the first term thereafter the court shall direct an issue to be made up in writing between the parties, if they both appear, which shall be tried as in other cases. As both parties appeared in this case, it became the duty of the court to direct that an issue be formed. The judge then on the bench did order such issue to be made, and plaintiff did file a complaint or statement for that purpose on its part. Paragraph 3178 of the chapter of the statutes above referred to is as follows: “Said issue shall consist of a brief statement of the authority and right by which the plaintiff seeks to subject the property levied on to his execution, and the nature of the claim of the defendant thereto. ’ ’ The complaint or statement filed by plaintiff substantially complied with said paragraph. Defendants filed no defense on their part, but acted as though the affidavit they had made and the bond which they had executed, and which had been filed by the sheriff in said court, was sufficient to present the issues on their part. Indeed, the judge then on the bench *100 seemed to consider those papers as sufficient to present all the issues necessary for a trial; and both parties, by having the case set for trial from time to time thereafter, appeared to join in that conclusion. We do not feel compelled, in this case, to determine what steps should be taken by the respective parties in cases such as this, in order to form an issue or to determine the nature of the pleadings which should be filed by them. What would be necessary in one case might not be necessary or sufficient in another. But we think the affidavit and bond made and executed by the defendants were such an appearance on their part, and the conduct of the parties in trying to bring the ease to trial, and the remarks of the trial judge with reference to the issue, were sufficient to prevent a judgment by default until defendants had been ordered to present some other issue, and had failed to comply, after having had sufficient time to comply with such order. 1 Black on Judgments, sec. 36; Norman v. Hooker, 35 Mo. 366 ; Ruck v. Jones, 33 Mo. 393 ; Mullen v. Wine, 9 Colo. 167 , 11 Pac. 54 .

Before the judgment was rendered defendants asked the court to grant them a few minutes only in which to draft ¡and file an answer, at the same time advising the court of the wiews expressed by the former judge with reference to the pleadings. Said request was refused, and we think the court erred in that respect.

Immediately after the judgment was pronounced defendants filed their petition, supported by affidavit, praying for an order setting aside the judgment, and for leave to file an answer, tendering therewith an answer containing allegations showing a meritorious defense, which they offered with said petition, and asked to file. In said petition they set out the rulings or declarations of the former judge with reference to the pleadings, and gave a full history of the case, and of the motions made in court by the respective parties, and steps taken by them to bring the case to trial. Before an appellate court will disturb a judgment by default, it should be made to appear that the trial court had failed to act with proper discretion. Two things in such cases must appear,—viz., that the defendant has a meritorious defense, and a good reason for not answering in time, or making his defense on the trial. Robyn v. Publishing Co. 127 Mo. 385 , 30 S. W. 130 ; Pry v. Railroad Co., 73 Mo. 123 ; Judah v. Hogan, 67 Mo. *101 252 ; 1 Black on Judgments, secs. 347, 348; Harding v. Cowing, 28 Cal. 212 ; Wallace v. Eldredge, 27 Cal. 495 . The defendants, by their petition to set aside the judgment in this case, having shown that they had a meritorious defense and a good reason for not filing an answer in time, the judgment by default should have been set aside, and defendants allowed to plead. The judgment of the district court is reversed, and the case remanded for a new trial.

Baker, C. J., concura.

Hawkins, J., took no part in this ease.