Hulbert v. Tredway , 159 Mo. 665 ( 1901 )

BURGESS, J.

Plaintiff sued defendants in the circuit court of the city of St. Louis, for the sum of $3,666.66 principal, and $427.16 interest, being the balance alleged to be due by them to him on a contract.

Defendants 'answered the petition by way of general denial.

On January 14, 1898, the case was called for trial, but defendants were not present.

Plaintiff introduced the contract in evidence, and testified himself to the balance due thereon. The court rendered judgment for plaintiff in the sum of $5,076.32.

Thereafter and during the same term, to-wit, January 14, 1898, defendants filed their motion to set aside said judgment upon the following grounds:

“First. Defendants have a good and meritorious defense to plaintiff’s complaint.

“Second. The judgment has been obtained by false, fraudulent and deceptive motives.

“Third. Defendants’ attorneys did not notify them of the setting of the case.

“Fourth. Plaintiff had agreed to dismiss said cause and had assured defendants he had done so,”

Defendants W. C. and J. B. Dines, filed their affidavit in support of said motion.

On April 29, 1898, the motion was sustained, and the judgment set aside. Plaintiff duly excepted, and appeals.

In this State circuit courts are of general jurisdiction, and proceed according to the course of the common law, have control of their judgments and may in the absence of statutory inhibition, at any time during the term at which rendered, set aside or vacate them at their discretion (Rottmann v. Schmucker, 94 Mo. 139; Nelson v. Ghiselin, 17 Mo. App. 663; Scott v. Smith, 133 Mo. 618) and it is only in case such discretion is erroneously and improvidently exercised that the Supreme Court will interfere.

The affidavit filed by defendants in support of their motion tended to show that they had a good defense to plaintiff’s action, that plaintiff had admitted to them that they did not owe him anything, had agreed to dismiss the suit, and thereafter, assured them that he had done so, and that they relied upon his statements and representations, and by reason thereof were not present at the time the case was heard and the judgment rendered.

These facts, we think, fully justified the court in setting aside the judgment, and show that the discretion of the court was not erroneously exercised in so doing.

Finding’ no reversible error in the record, the judgment is affirmed.

Sherwood, P. J., and Gantt, J., concur.