Opinion
Opinion filed September 18, 1945.
1. — Equity — Vacating or Enjoining Enforcement of Judgment. Where a defendant in an action at law has a good defense on the merits, which, through no negligence on his part, he is prevented by accident from setting up, and judgment is rendered against him, equity will grant relief by enjoining further proceedings to enforce the judgment or by setting it aside so that a trial may be had on the merits.
2. — Equity — Vacating or Enjoining Enforcement of Judgment. Where a defendant employed an attorney to defend her in an action at law begun before a justice of the peace and judgment was rendered by the justice in her favor and the plaintiff in the action appealed to the circuit court and the defendant's counsel received notice of such appeal but a few days later quit the practice of law and left the community without notifying the defendant of the taking of the appeal, by reason whereof judgment was rendered against the defendant by default in the circuit court, she was entitled to maintain a suit in equity to set aside the default judgment and restrain the sale of her real estate under an execution issued thereon, on the ground that she had suffered an accident which prevented her from setting up her defense in the action at law in the circuit court.
3. — Equity. Equity suffers no wrong of sufficient gravity to be appreciated by the conscience of the chancellor to go without a remedy where the application for relief is made seasonably and with clean hands.
4. — Attorney and Client. The law ordinarily regards the negligence of an attorney as the client's own negligence.
5. — Attorney and Client. Where a defendant employed an attorney to defend her in an action at law begun before a justice of the peace and judgment was rendered by the justice in her favor and the plaintiff to the action appealed to the circuit court and the defendant's counsel received notice of such appeal but a few days later quit the practice of law and left the community without notifying the defendant of the taking of the appeal, the attorney's act which led to the defendant's injury was not performed by him under the authority vested in him by virtue of his relationship to his client but in repudiation of that relationship, and hence the rule that the negligence of an attorney is the negligence of his client has no application.
6. — Attorney and Client. Where a defendant against whom a judgment was rendered by default in the circuit court was not in default because of any negligent act of her attorney while handling her case, but because her attorney breached his trust by abondoning the case after judgment had been rendered in her favor by a justice of the peace, without notifying her that an appeal had been taken to the circuit court, such action on the part of the attorney cannot be imputed to her so as to deprive her of the right to maintain a suit in equity to set aside the default judgment.
7. — Equity — Vacating or Enjoining Enforcement of Judgment. Where a defendant had employed an attorney to defend her in an action at law begun in a justice court and judgment was rendered by the justice in her favor, she was not negligent in failing to investigate the status of the case after the trial in the justice court when she had no reason to believe that her attorney would fail in his duty to advise her in regard thereto.
Appeal from the Circuit Court of the City of St. Louis. — Hon. Edward M. Ruddy, Judge.
AFFIRMED.
Arthur Kreisman and John T. Murphy for appellant.
(1) A judgment may be set aside only where the facts of the case disclose that by reason of accident, mistake, mischance or unavoidable circumstances, unmixed with negligence or inattention, a litigant has been deprived of opportunity to present a meritorious defense to a cause. Cherry v. Wertheim, 25 S.W.2d 118; Engler v. Knoblaugh, 131 Mo. App. 481, 492, 110 S.W. 16, 20; Jackson v. Chestnut, 151 Mo. App. 275; Millikin v. Anderson, 269 S.W. 675. (2) There is no distinction between negligence of the party and that of his attorney. Millikin v. Anderson, supra; Hoffman v. Loudon, 96 Mo. App. 184, 70 S.W. 162; Wuelker v. Maxwell, 70 S.W.2d 1100. (3) Trial courts have discretion to set aside judgments only when application therefor is made at the term during which the judgment was rendered. State ex rel. v. Shain, 129 S.W.2d 1048.
Joseph Boxerman for respondent.
(1) Where the facts of the case disclose that by reason of accident, mistake, inadvertence, mischance or unavoidable circumstances, unmixed with negligence or inattention, a party litigant has been deprived of an opportunity to present a meritorious defense to a cause, a court of equity will, after the term, vacate a default judgment, and give such injured party an opportunity to present his defense to a jury. Overton v. Overton, 327 Mo. 530, 37 S.W.2d 565; Cherry v. Wertheim, 25 S.W.2d 118, 121; Jackson v. Chestnut, 151 Mo. App. 275, 131 S.W. 747; City of Dearborn v. Gann Atkinson, 126 Mo. App. 638; McElvain v. Maloney (Mo. App.), 186 S.W. 745, 749. (a) Where an attorney abandons a case, without notice to the defendant who had a good defense on the merits and was not guilty of negligence, a default judgment rendered against him, without giving him an opportunity to employ other counsel, should be set aside. Lewis v. Van Hooser, 206 Mo. App. 618, 227 S.W. 618; Hall v. McConey, 152 Mo. App. 1, par. 7, 132 S.W. 618, 620; Evans v. Terrell (Tex. Civ. App.), 95 S.W. 684. (b) Equitable jurisdiction will also be exercised to prevent the enforcement of an unconscionable judgment. 31 Am. Jur., "Judgments," p. 218, sec. 635. (2) Plaintiff showed that she has "a meritorious defense" when she introduced the record of the original suit which recited a judgment in her favor in the justice court. The general rule is that where a court of competent jurisdiction has rendered a judgment in relation to any subject-matter within its jurisdiction, a presumption arises that there was sufficient evidence to authorize the judgment. And where, as here, it is not rebutted, the presumption becomes evidence and is to be evaluated upon that basis. 20 Am. Jur., "Evidence," p. 174, sec. 169; 15 R.C.L., "Judgment," p. 878, sec. 356; 20 Am. Jur., "Evidence," p. 170, sec. 166, and note 1 on p. 171; Davis v. Albritton, 127 Ga. 517, 8 L.R.A. (N.S.) 820. (3) The doctrine of laches cannot be invoked to defeat justice. Mere delay or lapse of time, however short of the statutory period, is not of itself sufficient to constitute laches. It must further appear that the other party has been prejudiced by such delay. Earley v. Automobile Ins. Co. (Mo. App.), 144 S.W.2d 860, par. 5; Deicke v. Roudebush, 138 S.W.2d 678, 683; St. Louis Fire Marine Ins. Co. v. Wagoner, 119 S.W.2d 1007, par. 4; Miller v. Farmers Exchange Bank, 107 S.W.2d 852, par. 4; Carlin v. Bacon, 322 Mo. 435, par. 7; Hagan v. Lantry, 338 Mo. 161, 175. (4) Equity will restrain use of advantage gained in a court of law through fraud, accident or mistake, where injustice will result. Krashin v. Grizzard, 326 Mo. 606, 31 S.W.2d 984; Crown Drug Co. v. Raymond, 51 S.W.2d 215; Smoot v. Judd, 161 Mo. 673, 61 S.W. 854; McElvain v. Maloney, 186 S.W. 745.
This is a suit in equity brought by Jennie Boeckmann to set aside a default judgment entered against her in an action at law brought by appellant Bessie Smith, and to obtain an injunction to restrain the sale of certain real estate under an execution issued on said judgment. The parties defendant in this case are: Bessie Smith, plaintiff in the law action; her attorneys in that action, John T. Murphy and Arthur Kreisman; and Thomas Quinn, Sheriff of the City of St. Louis. From a judgment granting the relief prayed in the equity suit, said defendants appealed to this court.
The law action, in which Bessie Smith obtained the judgment, originally was filed in a justice of the peace court, where respondent, Jennie Boeckmann, was represented by Harry Jones, a lawyer then practicing at the Bar in the city of St. Louis. The judgment was rendered in respondent's favor on May 24, 1935, and Bessie Smith took an appeal to the circuit court. Thereafter, Bessie Smith's counsel served Harry Jones with a notice of appeal, as required by the statute, but Harry Jones failed to notify respondent of that fact, and failed to inform her that an appeal had been taken. A few days after receiving the notice of appeal, Harry Jones quit the practice of law in the city of St. Louis, and took up residence elsewhere. He at no time informed respondent of that fact, or of the fact that an appeal in her case had been taken, and respondent's first knowledge that the appeal had been taken was on June 4, 1940, when she received a letter from the lawyer representing Bessie Smith, advising her that a judgment had been rendered against her in the circuit court for the amount prayed for in said cause. The judgment was entered on April 4, 1940, at the April Term, 1940, which said term had expired when respondent received the above-mentioned letter. After receiving the letter, respondent went to look for Mr. Jones, and for the first time discovered that he no longer was in the practice and that he had left the city. She then employed Mr. Kaveney to represent her. On August 27, 1940, Mr. Kaveney filed a motion in the case to set aside the judgment, which motion was denied. Thereafter an execution was issued on said judgment, and real estate belonging to respondent was levied upon and advertised for sale on May 13, 1941. Respondent then instituted this action. The trial court entered its decree setting aside said judgment, and making permanent a temporary injunction theretofore issued enjoining defendants from advertising for sale and from selling the real estate levied upon. In due course defendants appealed.
The first point which appellants make is that there are not sufficient facts alleged in the petition or shown in evidence to invoke the aid of a court of equity. To this we cannot agree. It is well settled that where a defendant in an action at law has a good defense on the merits, which he, through no negligence on his part, is prevented by accident from setting up, and judgment is rendered against him, that equity will grant relief by enjoining further proceedings to enforce a judgment, or by setting it aside so that a trial may be had on the merits. [Cherry v. Wertheim (Mo. App.), 25 S.W.2d 118; Jackson v. Chestnut, 151 Mo. App. 275, 131 S.W. 747; 3 Pomeroy's Equity Jurisprudence (5 Ed.), sec. 836.]
In the latter work the author states the rule in the following language:
"Sec. 836, 4. Judgments at law — Accident is also one of the grounds for the exercise of the most important jurisdiction with respect to actions and judgments at law. Where the defendant in an action at law has a good defense on the merits, which he is prevented by accident from setting up or making available without any negligence or inattention on his part, and a judgment is recovered against him, equity will exercise its jurisdiction on his behalf by enjoining further proceedings to enforce the judgment, or by setting it aside so that a new trial can be had on the merits. In many states, especially in those which have adopted the reformed procedure, this particular relief is usually obtained by means of a motion for new trial, and the necessary occasions for a resort to equity have been lessened; the equitable jurisdiction, however, has not been abrogated even in those states, and it is constantly invoked in other commonwealths."
Under the statutes of other States, which give to courts of law power to set aside judgments taken by default on the grounds of accident, mistake, inadvertance, or excusable neglect, it is quite generally held that relief under such a statute should be given to one whose attorney has abandoned his case without the client's knowledge or consent. [114 A.L.R. 279.] We have no such statute in this State, but our courts of law nevertheless give relief in such a case if they have not lost jurisdiction by lapse of time. In Lewis v. Van Hooser, 206 Mo. App. 618, 227 S.W. 618, it was held that the trial court erred in not setting aside a judgment where the defendant's attorney without notice to defendant abandoned the case and turned over the papers in the case to another attorney, who refused to act in his stead, with the result that a judgment by default was rendered. If this sort of relief is obtainable at law, we see no reason why, where the demands of justice require it, a court of equity should not grant relief in a case, such as the case at bar, where no relief at law can be had. Equity suffers no wrong of sufficient gravity to be appreciated by the conscience of the chancellor to go without a remedy where the application for relief is made seasonably and with clean hands. We believe that when Harry Jones abandoned respondent's case that respondent suffered an accident as that term is defined by Judge BENNICK in Cherry v. Wertheim, supra, and that equity should afford the relief sought by her in the case at bar.
It is next urged that respondent failed to make a case because the negligence of her attorney is chargeable to her.
While it is true that the law ordinarily regards the negligence of the attorney as the client's own negligence, such rule cannot be applied in the case at bar, because the act which led to respondent's injury was not performed by Harry Jones under the authority vested in him by virtue of his relationship to his client, but was performed in repudiation of that relationship. Respondent was not in default because of any negligent act of her attorney while handling her case, but was in default because her attorney Harry Jones breached his trust. Such action cannot be imputed to the client so as to deprive her of the relief sought in this action. [Kugelman v. Katz, 89 Misc. 461, 152 N.Y.S. 365; Grayson et al. v. Stith (Okla.), 72 P.2d 820, 114 A.L.R. 276.]
Nor do we think that respondent herself was negligent in failing to investigate the status of the case after the trial in the justice court. She had employed an attorney whose duty it was to advise her of such matters, and she had no reason to believe that he would fail in his duties.
The judgment appealed from is affirmed. Hughes, P.J., and McCullen, J., concur.