Webster v. McMahan

RYLAHD, J. Prom the above statement the simple question before us is the discretion of the court below. Did the court below decide properly that there was not sufficient diligence used by the defendants below, or by their counsel in making defense upon the appeal from the'justice of the peace ? What was the diligence used ? It seems that the lawyers who had been employed by the defendants below, thought it more incumbent on them to attend to some cases in the Supreme Court, and consequently went to Jefferson City, during the term of the Court of Common Pleas, in which this case was tried. That one of the counsel employed Mr. Grace, an attorney at law, to attend to his cases in his absence in the Court of Common Pleas, and in order that Mr. Grace might do so the counsel furnished him with a memorandum of the suits. In this memorandum the present case was marked “Webster v. Harris & Williams.” Mr. Grace examined the list of cases for trial in the Court of Common Pleas, the docket of the clerk of the court, and could find no such case. The clerk had marked the case thus, “Webster v. McMahan, &c.,” consequently Mr. Grace did not defend, and the case being called and no person appearing for the defendants, who were the appellants below from the justice of the peace, the judgment of the justice was affirmed. Motion was afterwards made to set this judgment aside ; affidavits filed in support of the motion, which was overruled. How the record* shows that the suit was brought by Webster v. John McMahan, Oliver Harris & John P. Williams, in the court of the justice of the peace. The plaintiff obtained judgment and the defendant appealed. The clerk of Common Pleas enters the case on'his docket, “Webster v. McMahan, &c.” The defendant’s original attorney gave his memorandum of the case to Mr. Grace whom he had employed, thus, “Webster v. Harris & Williams," and complains of the clerk not making the case on his docket in the same manner. How I find no fault with the clerk. It was the hurry of the attorney to reach Jefferson City that made the incorrect statement of the parties’ names. If he had given the names of all the persons sued below, although he might have been employed by Harris & Williams, and not by McMahan, it would have easily led Mr. Grace to the true parties. He could have found the case ; if there had been the slightest examination of the papers in the case of “Webster v. McMahan, &c.” it would have immediately been known who the “&c.” represented. I am opposed to disturbing this judgment. Parties and their counsel must use more diligence. If in this case a correct memorandum had been given to Mr. Grace, or if he had only made the slightest examination of the papers in the case of Webster v. McMahan, &c., he might have been fully informed upon this subject. I am not willing to say that there is orassa negligentia here, but I cannot find the due and sufficient diligence.(a) Let the judgment of the Court of Common Pleas be affirmed. Footnotes [a] (a) Lecompte v. Wash, 4 Mo. R. 558, and note.