Anderson v. Perkins

Bombaxjee, P. J. This suit is upon an account, and was brought to the October term, 1891, of the circuit court of Scott county. The defendant James filed an answer at that term, and the defendant Perkins entered his appearance, and asked and obtained leave to answer by the first day of the succeeding term. On the first day of the April term, 1892-, the defendant James appeared and filed an affidavit for a change of venue. This affidavit was insufficient under section 2260 of the Bevised Statutes, because it failed to state when knowledge of the existence of the cause for such change came to the affiant’s knowledge, or that it came to his knowledge since the adjournment of the last regular term of the court. The motion was overruled, the cause tried in the absence of the defendants, and final judgment rendered against them. Before the close of the April term, but more than four days after trial, the defendants moved to vacate the judgment on the ground that they made no preparation for trial, relying upon the fact that their motion for change of venue would be sustained; that they had a meritorious defense, and that the defendant James left for home as soon as he filed his affidavit for a [529] change of venne, and that the motion to vacate the judgment was filed as soon as he could return after being notified of the rendition of the final judgment; also that their regular attorney was unavoidably absent at the April term of court. The court overruled this motion likewise, and this ruling is assigned for error by the appealing defendants. Judgments rendered by trial courts are within their control during the term when rendered. The court may set them aside for cause, even though the motion for new trial has not been filed within the statutory time. Nelson v. Ghiselin, 17 Mo. App. 663. But where the court refuses to vacate a judgment upon a motion filed more than four days after trial, the appellate court will not interfere unless the judgment is erroneous upon the record, or the discretion of the court has been oppressively exercised against the complaining party. In the case at bar the judgment rendered is warranted by the record. The fact, that the trial was had in the absence of the defendants and their attorney, was due to their own laches. They would not be entitled to relief, even if they had filed their motion in time. Gehrke v. Jod, 59 Mo. 522; Peers v. Davis, 29 Mo. 184; Fretwell v. Laffoon, 77 Mo. 26. A fortiori are they not entitled to relief, when the granting of such relief depends on the abuse of judicial discretion, and no such abuse is shown! All the judges concurring, the judgment is affirmed.