Scott v. Smith

Macfarlane, J.

This suit is for $5,000 damages for bodily injuries caused by the alleged negligence of defendant. The answer, in addition to a general denial, set up contributory negligence on the part of plaintiff as an affirmative defense. To this plea no reply was filed. The case was set for trial September 30, 1893. Plaintiff failed to appear either in person or by attorney. When the case was called for hearing defendant was ready for trial. No reply having been filed to the plea of contributory negligence, final judgment for failure to prosecute was rendered against plaintiff.

On the fifth of October thereafter, and during the same term of court, plaintiff filed a motion, verified by the affidavit of his attorney, to set aside and vacate the judgment for these reasons:

“First. Because plaintiff’s attorney was unable to attend court on the day case was set for trial, on account of sickness in his family, said attorney’s wife being confined by birth of child; that on said date of *622 trial said attorney had three physicians to see his wife on account of;his wife’s critical condition.

" Second. That plaintiff’s attorney was mistaken as to the day of trial, he had no notice that said cause would be tried on that date, as it was a jury case, and' said attorney understood rules of court to be such that jury cases would not be called for trial on Saturday; he being a nonresident of this county was not very familiar with' this court’s rules and by reason of the sickness aforesaid was unable to inquire about same; that same was a surprise to plaintiff’s attorney. Plaintiff had a just cause of action.”

Upon hearing of the motion Mr. Strother, the attorney of plaintiff, testified that he had sole charge of the case, and, from the twenty-seventh until after the thirtieth of September, his wife was seriously and dangerously ill from childbirth, so much so as to require his constant attention upon her and prevented him from thinking of or attending to business of any kind. That he did not know the case had been set down for trial, supposing he would be notified thereof by the clerk as he had been in other cases and not being able to make inquiries for the reasons above stated. Counsel lived in another county and expected to file a reply when he went to trial as was the practice in his own circuit. The court stated that the same practice was allowed in his court.

The court sustained the motion, vacated the judgment and reinstated the case, and defendant appealed.

I. In the absence of a statutory limitation, a trial court possessing general jurisdiction and proceeding according to the course of the common law has control of its judgments of the character of this one during the term at which they are rendered, and power to vacate them in its discretion. Williams v. Circuit Court, 5 Mo. 249 ; Rottmann v. Schmucker, 94 Mo. 143 ; *623 Nelson v. Ghiselin, 17 Mo. App. 665 . While the discretion is judicial, yet it should not be interfered with by appellate courts unless arbitrarily and oppressively exercised.

It was said by Judge Scott in Stout v. Lewis, 11 Mo. 439 :

“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. Anyone 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 *624 might sometimes be done, but in the most of them it would be little more than groping in the dark, in which the court could not satisfy itself whether it was doing right or wrong. ’ ’

We do not think the court acted arbitrarily in vacating the judgment in this case. Indeed, we are of the opinion that the court, in the circumstances shown, could not have acted otherwise without disregarding the common instincts of humanity.

II. But it is said that the affidavits filed in support of the motion showed no merit in the cause of action. The judgment was not one strictly by default. Plaintiff’s cause of action was stated in his petition, and it appeared therefrom to be meritorious. It. is true no reply had been filed but the practice permitted one to be filed at any time before the trial commenced. The plea of contributory negligence contained only a general charge of negligence on the part of plaintiff without setting out the specific negligent acts relied upon to defeat a recovery. Plaintiff could only have learned on the trial what facts he had to meet on that question. In the circumstances, it would have been unreasonable to require plaintiff to show, as a condition for relief, . the facts on which he would rely to rebut or defeat the plea. The answer, general as it is, could properly be met by a general denial.

Finding no error in the action of the circuit court, its judgment is affirmed.

All the judges of this.division concur.