Cavanaugh v. McColl

ELLISON, P. J. Plaintiff instituted an action on a judgment he theretofore obtained against defendant in the State of Iowa. When the case was called for trial defendant did not appear and judgment by default was entered. During the term he appeared and filed a motion to set aside the default, which was overruled and final judgment being rendered against him, he appealed. The ground of the motion was that the defendant was absent from the State ‘ ‘ at the time the cause was called for trial, and knew nothing about the failure of his counsel to file answer as required by the rules of this [258] court.” And that his attorney was absent the first three days of this court in Oklahoma engaged in the trial of a case “and by reason thereof overlooked the filing of an answer in this case.” It was also stated that defendant had a meritorious defense. The motion was overruled by the trial court, and defendant filed what he designates as an amended motion. It is the same as the original, except he tenders an answer in the cause as constituting his defense to the case stated in plaintiffs petition; and states that as no jury cases had been tried during the term of court and that the case would not be reached for trial before January or February, 1914, no harm would result by sustaining the motion. ITe like-wise offered to pay the costs. It will be seen that the only grounds stated for setting aside the default are that defendant himself was absent and did not know of the failure of his counsel to file answer as required by the rules of court; and that his attorney, being also absent, 'overlooked the filing of an answer in the case. The motions disclose inexcusable neglect. The negligence of the attorney, under repeated rulings of the courts, is the negligence of the client. [Gehrke v. Jod, 59 Mo. 522; Crutcher v. Railroad, 181 Mo. App. 368; Parks v. Coyne, 156 Mo. App. 379; Wilson v. Scott, 50 Mo. App. 329; Welch v. Mastin, 98 Mo. App. 273, 277.] The record does not contain anything which affords us any justification in overruling the trial court’s discretion. The judgment is affirmed. All concur.