Gullett v. Swinney , 61 Mo. App. 226 ( 1895 )

Rombauer, P. J.

The only question presented by this appeal is whether the trial court abused its judicial discretion in refusing to vacate a judgment of affirm - anee under the following circumstances:

The plaintiff obtained a judgment for the possession of property and damages in a replevin suit before a justice of the peace, and the defendants appealed to the circuit court. On the first day of the term at which the cause was triable, the judge, according to custom, called the docket for the entire term, and assigned the causes to their respective days of trial. The cause was assigned to October 10,. 1893, on which day no jury cases were set. Cards, showing the arrangement of the docket and the setting of causes, were printed by the clerk and distributed to the attorneys, and it stands conceded that the attorneys of the defendants were in possession of one of these cards, showing that the cause was set for trial on October-10, 1893. On that day the plaintiff appeared ■ in court, and, the defendants not appearing either in person or by counsel, the court, upon the plaintiff’s motion, affirmed the judgment of the justice for failure to prosecute the appeal. The defendants, within four days thereafter, moved to vacate the judgment on the ground that the court erred in setting the cause for trial on the court docket and thereby depriving defendants of a jury trial. On the hearing of the motion, one of the attorneys of the defendants testified that he was misled by the setting of the cause among the jury waived cases, and owing to that fact he had made no preparation for trial, and that the defendants had a meritorious defense.

It is evident from this statement that the court was not guilty of any abuse of its discretion. The appellee was entitled, as a matter of law, to a judgment of affirmance. Holloman v. Railroad, 92 Mo. 284. The appellant had all the notice of the setting of the case to which he was entitled by law. Summers v. Insurance Co., 56 Mo. App. 654. A party, who fails to appear, is deemed to have waived a jury trial. R. S. 1889, sec. 2133. Other points made in appellant’s brief address themselves to the question of professional ethics only.

All the judges concurring, the judgment is affirmed.