Davis v. Carp

COX, J. — Plaintiff has filed in this court a motion to dismiss the appeal for the reason that appellant’s abstract fails to comply with the rules of this court. Since the filing of this motion, appellant has filed supplemental abstract. This is permissible. [Ricketts v. Hart, 150 Mo. 64.] • And, as this supplemental abstract cures the defects of the original abstract, the motion to dismiss appeal is overruled. The only question to be determined further in this case is whether the action of the trial court in striking out defendant’s answer, and refusing him permission to file an amended answer and rendering judgment on the pleadings, should be sustained. That the 'defendant was in default by not having filed an answer within the time granted by the Christian Circuit Court is evident. His excuse for not doing so, as appears from this record, is that he employed counsel, who was there present in court, to represent his interests, and he supposed that an answer had been filed and all steps, necessary to protect his interests and secure him. a trial, had been taken by his counsel, and only learned that an answer was not filed after the case reached the Lawrence County Court. As a general rule parties must be held responsible for the negligence of their counsel, but it does not follow that he shall, by reason of that fact, be, in every case, deprived of a right to a hearing upon the merits of his case. Whether a party shall be allowed to plead out of time is a question which rests largely in the discretion of the trial court, and its discretion in that respect will not be interfered with by the appellate court unless it [655] shall appear that injustice has been done. The rule by which a trial court should be guided in matters of this kind was well stated by Leonard, Judge, in the case of the State, To Use of Squires & Reed, v. Bird and Gilbert, 22 Mo. 470, and is as follows: “In matters of discretion, and this was certainly of that character, we do not interfere, except it appear clearly to us that the court has erred in the exercise of it, to the manifest injury of the complaining party. . . . The purpose of justice will be best subserved by allowing a party to file his answer at any time before his default has been acted upon, in all cases where he has a real defense to make, and it will not create delay in the determination of the cause or prejudice the just rights of the plaintiff, and there is no reason to believe that the failure to answer was willful or for any improper purpose.” In this case it was apparent upon the face of the petition that unless the defendant had, as therein alleged, been for a portion of the time a non-resident of the State, plaintiff’s action was barred by the Statute of Limitations. It appears from, the record in this case that after defendant had made default in Christian county by not having filed an answer within the time granted by that court, plaintiff filed application for a change of venue, defendant appeared at the hearing of this application, and both plaintiff and defendant consented that the case be sent to Lawrence county. Only there days before the date set for trial in Lawrence county, plaintiff had depositions taken for the purpose of trying to show that defendant had been for some time a non-resident of the State; thus showing that he expected a trial upon that issue. After having required the defendant to attend at the taking of depositions in his behalf upon an issue that could only be raised by a pleading filed, and could only be heard upon a trial of the case, and having agreed at the taking of these depositions that they should be read in evidence upon the trial subject only to the [656] objections of materiality and relevancy, it cannot be said that permitting the defendant to plead, and by his pleading put in issue the very fact which plaintiff had prepared .himself upon, that any injury could be inflicted upon plaintiff thereby. Our conclusion is that the court erred in refusing defendant permission to plead, and the judgment of the lower court is reversed and the cause remanded. All concur.