Badger Lumber Co. v. Boswell

TRIMBLE, J. Plaintiff appeals from an order of the circuit court setting aside a judgment rendered after hearing the plaintiff’s evidence, but in which defendants Boswell made default. The suit was instituted February 3, 1912, to enforce a mechanic’s lien against a house and lot alleged to be owned by defendants Lela Boswell, J. W. Boswell, for lumber sold by plaintiff and used in the erection of the house. Summons was issued returnable to the March Term, 1912, and the same was duly served upon defendants in time to require them to plead at that term. The suit was against Lela Boswell, J. W. Boswell, her husband, Redlon Land Company, and A. N. Gossett, Trustee. The two last named defendants were respectively beneficiary and trustee in a deed of trust .given by the Boswells on the land in question. As the .judgment which was set aside fonnd that this deed of trust was superior to plaintiff’s lien, the rights of said trustee and beneficiary are not involved and they are not complaining. The Boswells were in defanlt at the March term, 1912, and remained so throughout the J une term, 1912. At the September term, to-wit, on October 8, 1912, the defendants Boswell being still in default, plaintiff appeared and announced ready. Neither of the defendants Boswell appeared, though the trustee and beneficiary in the deed of trust did. They had previously filed an answer consisting of a general denial and al [182] legations setting np the superiority of their deed of trust. Plaintiff waived a jury and submitted its evidence in support of its lien and the court rendered a personal judgment against Lela Boswell and J. W. Boswell for a balance of $518 due on said account with interest from October 18, 1911, aggregating $564.62 and enforced the lien on the house and lot described in the petition, subject however to the deed of trust aforesaid. Three days later and at the same term, to-wit, on October 11, 1912, defendants Boswell filed a motion to set aside the judgment against them. With said motion they filed a joint and separate answer. On October 17,. 1912, at the same term, they filed an amended motion to set aside the judgment against them, which motion was verified by the affidavit of J. W. Boswell for himself and as agent for Lela Boswell. On the 19th of October, 1912, plaintiff filed a number of affidavits in opposition to the motion, and the matter went over until the December, 1912, term, to-wit, January 25,1913. By this time the term of Judge Powell, who rendered the judgment, had espired and he had been succeeded on the bench by Judge Stone. When the motion came on to be heard plaintiff objected to the consideration of the motion on the ground that the motion did not set up good or sufficient cause for setting aside the judgment nor did it show that defendants had a meritorious defense. This objection was overruled and the court sustained the motion and set the judgment aside. Plaintiff has appealed. Under the ruling announced by the Supreme Court in the case of Buissiere’s Admr. v. Sayman, 165 S. W. 796, no appeal lies from an order vacating a final default judgment. This appeal is, therefore, dismissed. The other judges concur.