Crutcher v. Kansas City Viaduct & Terminal Railway Co. , 181 Mo. App. 368 ( 1914 )

ELLISON, P. J.

Plaintiff brought an action against defendant for commission alleged to be due on account of procuring for defendant options of purchase of several parcels of real estate. When the ease was called for trial defendant, though having filed an answer, did not appear. The court noted the default and proceeded to hear the evidence offered in plaintiffs behalf and then rendered final judgment for plaintiff in the sum of $2884. At a succeeding term of court defendant appeared and filed a motion to set aside the judgment, assigning a number of reasons therefor. The court overruled the motion and defendant in due time procured a writ of error from this court.

The principal grounds upon which the motion is based are that defendant, or its attorneys, employed Vincent O’Flaherty to notify the attorneys when the case would be assigned and to what division of the circuit court of Jackson county at Kansas City it would be sent for trial. That said O’Flaherty was “relied upon by all lawyers having- business in the court to uotify them of the assignment and the time when their oases would be called for trial,” and that in this instance O’Flaherty failed to notify them and in consequence, they knew nothing of the judgment being rendered until the close of the term, a long time after-awards.

It seems that 0 ’Flaherty is a person without official connection with the court or clerk, but is a private employee of a number of attorneys who employ him either by the year, or by the case, to notify them of the assignment of cases in which they are interested. When engaged by these attorneys he became their agent and thereby, perhaps, the agent of this defendant, to notify them, and any failure on his part must be taken to be the failure of the defendant itself. [Estes v. Nell, 163 Mo. 387; Robyn v. Chronicle Pub. Co., 127 Mo. 385, 391.] In Welch v. Mastin, 98 Mo. App. 273, 277, we said, “It thus clearly appears from the motion that the cause of defendant’s failure to appear was the neglect of their attorney. Ordinarily the neglect of the attorney (not reaching the point of collusion, or the like, of which there is no pretense in this case) is the neglect of the client himself; and he takes the consequence as though he had been the actor. [Gehrke v. Jod, 59 Mo. 522; Biebinger v. Taylor, 64 Mo. 63; Robyn v. Pub. Co., 127 Mo. 391; Tower v. Ellsworth, 112 Gra. 460.] ’ ’ It was said in Kerby v. Chadwell, 10 Mo. 393, that, “The omission of the attorney spoken to in the cause to plead within the time prescribed by law, cannot place the application to set aside the judgment by default upon more favorable grounds than if the omission had been on the part of the defendant himself. The attorney is the agent of the party employing him, and in the court stands in his stead, and any act of the .attorney must from necessity be considered as the act of his client, and obligatory on the client. This principle is so well understood and has been so long acted upon as to render it almost useless to refer to it — a different principle could not be tolerated by the courts without immediately leading to endless confusion and difficulty in the administration of justice.”

We therefore find against that branch of the motion.

It is next said that the judgment was obtained in fraud. We find no evidence to sustain such charge. The claim is that Crutcher made the contract with Rein-hart who was then president of the defendant company and that Reinhart was dead when the trial was had and that Crutcher, though incompetent by reason of the death, was the principal witness in his own behalf and failed to notify the court of Reinhart’s death.

This ground affords no reason for disturbing the judgment. In the first place there is a difference between a competent witness and competent evidence. If the evidence is competent, the inc'ompetency of the witness may be waived. Melbourne v. Robison, 132 Mo. App. 202-205, and Crutcher could not have known that defendant would not have waived the point and have desired to hear his testimony. In the next place this would not have been such, a fraud as the law recognizes as cause for setting aside a judgment. Even “false swearing and false averments in pleadings do not give rise to an action in equity to set aside a judg-' ment for fraud. . . . There must be some fraud committed on the court itself in the procurement of the judgment arising extrinsically or collaterally to the issue tried, or on the party himself, arising in the same way. ’ ’ [Howard v. Scott, 225 Mo. 685, 714.] The same rule is stated in Nichols v. Stevens, 123 Mo. 96, 126; Hamilton v. McClean, 139 Mo. 678; Moody v. Peyton, 135 Mo. 482, and Fears v. Riley, 148 Mo. 49.

Defendant has cited us to several authorities which we consider to be without application. There is nothing to be gained by going over them in detail. The case is much better understood and our conclusion more readily approved, when reference is had to the principal reasons upon which defendant is compelled to stand. First, is the alleged neglect of its own agent to give notice of the assignment and time of trial. Second, the alleged fraud of Crutcher, consisting in his failure to tell the court that Reinhart was dead and that he, Crutcher, was therefore not a qualified witness. It would be going beyond any precedent, to say nothing of sound reason, to hold that Crutcher, who was not a lawyer, knew the death of one party prevented the other from testifying. The presumption that every one knows the law is not sufficient ground to convict one of wilful fraud.

Much of defendant’s brief is based upon the idea that the present motion shonld serve it as well as if it had never been in default; and should give it every opportunity to be found in a motion for a new trial. Hence, among other things, it is urged upon us that plaintiff did not have sufficient' evidence to make out a case; the incompetency of testimony and the like. 'While it is well enough for a party filing a motion of the nature of the present one, to state he has a good defense, yet it has never been supposed that, on such a motion, he may have what, in effect, would be a new trial.

A consideration of the whole record has shown that the trial court could not have rendered any other judgment on the motion and consequently it is affirmed.

All concur.