Sinclair v. Narragansett Lead & Zinc Co. , 87 Mo. App. 268 ( 1901 )

ELLISON, J.

The petition in this cause contained several counts. Eor the purposes of this appeal, it is sufficient to say that one of these counts prays judgment for $1,500 as purchase money on a contract of sale of an interest in a mining lease. The action was brought against this respondent, the Narragansett Lead & Zinc Co. (a non-resident corporation), W. H. A. Clark and others. The lead and zinc company denied any liability or connection with plaintiff’s action. Clark seems to have assumed the defense of the case and employed an attorney for himself and the lead and zinc company, to defend, and so informed the president of .the company, who was in the county at the time, though residing in Boston, Massachusetts. The attorney also informed him of his employment. The attorney appeared in court, caused the plaintiff to give security for costs, filed answers for defendants and consented to a change of venue to another place for holding court in the same county. During the time these matters were transpiring, tbe attorney was insisting to Clark that he should pay him a fee, or make some satisfactory arrangement about it. Clark failed to do so, and finally, on April 11, 1900, the attorney withdrew from the case. It was then, on April 19, called for trial, the defendants not appearing thereat.

On hearing evidence, judgment was rendered for $1,500 against this defendant company alone. The defendant company knew nothing of these things and first learned of the judgment through the newspapers, when the president immediately set about to protect the interest of defendant. He came out to Jasper county and then learned of what had taken place. The term of court at which the judgment was rendered had not yet been adjourned and he caused to be filed a motion, setting up the foregoing facts and verified by affidavit, praying that the judgment be set aside. After a hearing of evidence on the motion, both parties taking part therein, it was sustained by the trial court, and plaintiffs appealed.

It is conceded by plaintiffs that the motion of the lead and zinc company to set aside the judgment rendered against it, as above stated, is addressed to the discretion of the trial court. But it is insisted that such discretion has been abused in this instance. In the argument for plaintiffs it was said that the discretion meant by the law as being reposed in a trial court was a judicial discretion. That caprice or the changing humor of the judge could not be substituted for discretion. We agree with counsel in that statement. When an appellate tribunal exercises revisory power over the discretion of a trial court it must necessarily recognize some liberty of 'action, within the bounds of reason, by the trial court. Otherwise, there would be no difference in the rulings of trial courts in maters conceded to be within their discretion and maters depending upon fixed rules and defined principles of law. In other words, the phrase, “in the court’s discretion,” would have no meaning. There would be no discretion. In matters of discretion, the trial court, as has been just stated, must have liberty of action, but liberty here, as when used in other connections, does not mean license. Therefore, the court must not abuse the discretion which the law grants it. If it does, then, and then only, has the appellate tribunal authority to set aside the action taken. Now, what is abuse of discretion?

“Judicial discretion is a phrase of great latitude; but it never means the arbitrary will of the judge.” Tripp v. Cook, 26 Wend. 143, 152. To act from the promptings of arbitrary luill is to be governed by mere whim and without reason, and the act is an abuse of discretion. So if a judge, in passing on matters in his discretion, does that which is clearly unreasonable, he has committed an abuse of discretion. It has, therefore, been ruled that to make out an abuse of discretion the action must have been taken “on grounds, or for reasons clearly untenable, or to an extent clearly unreasonable.” Murray v. Buel, 74 Wis. 14.

Did the court go beyond reason in this case ? It certainly did not. Here was a party defendant who, after being summoned, saw that an attorney was employed to defend the action. This party and its managing officer lived in another State. It was not expected or contemplated that the attorney would withdraw from the case. No notice or warning was given to this defendant, and as soon as 'the president received information of what had happened, he became diligent to have the matter set right if it could be done. Instead of being an abuse, it was an exercise of discretion we consider highly proper. Even if it had been a closer question than it is, wo would still have borne in mind that the latitude of discretion is indulged to a broader degree when the act of the court results in holding the case open, so that justice will yet be had, than where such action is final in its result. Stout v. Lewis, 11 Mo. 438; Lansent v. Mullikin, 10 Mo. 495; Longdon v. Kelly, 51 Mo. App. 572; Ensor v. Smith, 57 Mo. App. 584.

We have no hesitation in affirming the judgment.

All concur.