Steyermark v. Landau

GOODE, J. On May 18, 1904, the defendants in this suit recovered a judgment by default against plaintiffs before a justice of the peace in the city of St. Louis, for $575. The present proceeding is in equity to have said judgment before the justice set aside, its collection restrained and for a hearing of the case by the justice on-the merits. The ground on which this relief is sought is that the judgment was procured by fraud and deceit and in violation of an express stipulation made by the attorney for defendants with plaintiffs and their attorney. The facts are that the cause was set for trial before the justice, in the first instance, on April 18, 1904. The attorney for defendants (plaintiffs in the other action) requested a continuance of the cause, of the attorney for the Steyermarks. He would not agree to a continuance without the consent of his clients and referred defendants’ attorney to them. Said attorney saw Steyermark and after a parley between the two, an agreement was reached that the cause before the justice should be continued from April 18th until after Mr. Steyermark, who was about to leave St. Louis for several Aveeks, had returned. As to this agreement the parties concur. But Mr. Steyermark and his attorney testified to another stipulation; to-Avit, that after Steyermark had returned defendants’ attorney should have the causé set down for trial and notify plaintiffs, or their [405] attorney, of the date. Defendants’ attorney testified to the contrary, and that there was no understanding he should notify plaintiff's of the date of the trial. The case was set for May 18, 1904, a month later than the original setting, and as plaintiffs failed to appear at that time, the justice entered judgment against them by default. Defendants’ attorney had given no notice to plaintiffs dr their attorney of the setting of the cause, and, as' stated, swore there was no understanding that he should. The court below entered judgment for defendants and plaintiffs appealed. If defendants’ attorney, when the cause was continued to accommoclote him, agreed with Steyermark or his attorney to notify plaintiffs of the resetting of the case and afterwards took judgment by default without complying with his agreement, he committed a fraud in procuring the judgment which would entitle plaintiffs to relief. A case involving theprecisequestionandinwhich this court ruled in accordance with what we have said, is Sanderson v. Voelcker, 51 Mo. App. 328. Negligence which would bar relief ought not to be imputed to plaintiffs, or their attorney, for failing to ascertain from the justice’s docket when the case was set, if it was agreed defendants’ counsel should notify them of the date. On this issue of fact the testimony is.so conflicting that we are not inclined to reverse the decision of the circuit court, as the judge of that court had the witnesses under his eye while they testified. Another reason why the judgment of the court below7 should be sustained is that plaintiffs have made no showing, either by averment in their petition or evidence, that they have a valid defense to the action instituted against them in the justice’s court. It is true the petition says plaintiffs have a meritorious legal defense; but this is not enough. Nowhere in the record do w7e find the least disclosure of the nature of the action before the justice or the defense plaintiffs Avould make. In Goldie Construction Co. v. [406] Rich Construction Co., 112 Mo. App. 147, 156, 86 S. W. 587, we remarked on the vagueness of the hooks regarding the showing a plaintiff must make of defense to an action in which judgment has gone against him, in order to have the judgment set aside or restrained for fraud in procuring it. But little light is thrown on this question by the adjudged cases, though they all agree that, when there was personal service and the court had jurisdiction, some showing of a meritorious defense is essential in order to have the judgement vacated. It has been decided in this state that merely alleging such a defense exists is insufficient. [Sauer v. Kansas City, 69 Mo. 46.] As neither the pleadings nor the proof in the present case, give any intimation concerning the cause of action on which defendants obtained judgment before the justice, or what defense plaintiffs claim to have thereto, one necessary ground of relief is not established. [State ex rel. v. Henderson, 164 Mo. 347, 64 S. W. 138.] The judgment is affirmed. All concur.