— The plaintiff brought this suit, in the circuit court of Jasper County, on the 2d day of July, 1910, to recover from the defendant $1620', and to impound certain funds belonging to the defendant in the hands of A. F. Carmean, clerk of the circuit court of said county. In aid of the suit, an attachment was issued and the funds of the defendant owing by tenants on its mining lands in said county, were garnisheed. Summons was issued to the sheriff returnable to the Octo*428ber term of the court. There was no service on the defendant, but on the 5th day of October, (the third day of the term) the following- motion (omitting caption) was filed by the defendant: “Comes now the defendant and appearing for the purpose of this application only, and represents to the court that the plaintiff has attached the property and effects of defendant and asks the court to make an order permitting defendant to give bond in a sum to be fixed by the court and have the property and effects of defendant released from said attachment.”
On the 13th day of October, the defendant appeared by its attorney and asked permission to withdraw the application above set forth, and the following order was duly entered of record: “By leave of court application for an order permitting the defendant to give a redelivery bond withdrawn.”
On the 15th of October, judgment was rendered against the defendant in favor of the plaintiff. The judgment of the court recites, “it appearing to the court that the defendant has filed a motion herein praying the court for an order allowing it to file a redelivery bond, and asking the court for* an order releasing the attached property herein,” etc.
On the 18th day of October, the defendant filed a motion to set aside the default judgment, for the following reasons: “1st. That said judgment was rendered without proper service of process upon this defendant. And defendant states that he has a good and meritorious defense to the said cause of action stated in plaintiff’s petition, to-wit: That plaintiff has been fully paid for all services rendered defendant as general manager or attorney or in any other capacity, and that defendant is not indebted to him in any sum for said services.”
The motion was supported by the affidavit of appellant’s attorney, but was overruled by the court, after the parties had offered testimony relating to the same.
*429It was shown by the testimony that the defendant is a foreign corporation, with its chief office out of this state; that for sometime previous to the institution of this suit, the plaintiff had been its general manager and attorney in Missouri; that he was superseded by a Mr. Ewell, and this suit was instituted by plaintiff to recover the amounts he claimed the defendant owed him for services rendered. The defendant had appointed Mr. Ewell its agent, upon whom process might be served in this state. The certificate had been filed with the Secretary of State. Mr. Ewell was located in Webb City, but had no sign at his place of business indicating that it was an office of the defendant.
The evidence further shows, however, that the plaintiff had transacted business with Mr. Ewell as the general manager of the defendant, and that plaintiff had this knowledge in plenty time to have served the summons upon Mr. Ewell, had he so desired.
The evidence further shows that it was understood between Mr. Young, the attorney for defendant, and Mr. Ewell, its manager, that nothing should be done to enter the appearance of the defendant at the October term, for the reason that defendant was not ready for trial on the merits. The plaintiff was suing on an account as general manager and attorney, and the defendant wanted to ascertain what services had been rendered, as the defense was that plaintiff had been paid in full for the value of of the services rendered. Parties were mining on the defendant’s lands, and its funds were tied up by the attachment proceedings. After talking the matter over, Mr. Young and Mr. Ewell agreed that they could give a redelivery bond to the sheriff under section 2317, Revised Statutes 1909. On reading the statute, the defendant’s attorney was of the opinion that the words found therein, to-wit, “under the order of the court,” required him to obtain an order from the court to authorize the sheriff to take the bond, and he appeared in court for the sole purpose of getting the order under that section of *430the statute; that when he afterwards learned that his appearance for that purpose might be construed as an appearance in the case, and that it was not necessary to apply to the court for an order under that section, he immediately asked permission to withdraw his application, and the same was granted. The order of the court and its judgment show that the court so understood the application of the defendant. It may be stated that there is no conflict as to the facts, and they are substantially as herein stated.
It is the claim of the respondent that appellant’s application was made under section 2341. This section provides how an attachment may be dissolved. First. When the affidavit is insufficient. Second. When the defendant shall appear and plead to the action and give bond to the plaintiff, conditioned that the property .attached shall be forthcoming when and where the court shall direct. And third. When the defendant shall appear and plead to the action and give like bond, conditioned that the defendant shall pay to plaintiff the amount which may be adjudged in favor of the plaintiff, including interest and costs of suit.
It will be noticed that the authority to dissolve attachment by giving bond, is conditioned on the appearance of defendant and plea filed to the action.- The defendant did not appear and plead to the action, and there is no testimony tending to prove that it was proceeding under section 2341. The undisputed testimony corroborated by the order and judgment of the court, shows that defendant was proceeding under ' section 2317.
Counsel for the respondent claim that the decision is controlled by the case of Whitings & Williams v. Budd, 5 Mo. 443. In that case a motion was filed to quash the attachment, and the parties were intentionally proceeding under what is now section 2341, and the court rightfully held that they were in court for all purposes. And if the evidence showed, in this case, that defendant was *431proceeding under the provisions of that section, we would hold that notwithstanding it attempted to limit its appearance, that it was in court for all purposes.
But it is shown beyond question by all the evidence, that the defendant’s attorney was proceeding under the other section of the statute, and not only with no intention of entering the appearance of his client, but at the time there was an understanding between him and his client that nothing should be done to enter the appearance of the defendant in the case at that term.
It is further shown that when the attorney learned that his actions might be construed by the plaintiff as an appearance, that he at once applied to and was granted permission by the court to withdraw the application.
This court has taken an advanced step toward the trial of cases upon the merits. We have adopted a most liberal set of rules in regard to the sufficiency of abstracts of the record filed in this .court. These rules were adopted with a view of avoiding the necessity of dismissing'so many appeals on account of mere technicality. In the recent case of Hall v. McConey, 132 S. W. 618, we declared: “Courts should and do favor the trial of causes upon their merits, and, if failure to secure such trial is not due to the negligence óf the party in default, he should, upon a proper showing of merits, be given an opportunity to be heard. And it is well settled that the appellate court is less apt to interfere when the judgment was set aside, than when it was not. This is upon the theory that, when the judgment is set aside, the cause is reopened and justice will yet be done on the merits between the parties.” We further said: “The general rule is that, where the application discloses a. good defense on the merits, and a resonhble excuse for delay is shown, and no substantial injury has resulted from such temporary delay, the court should exercise its discretion in favor of the trial on the merits.”
In the present case, the suit was not for trial at the October term. The action of the defendant’s attorney *432in applying to the court, under a mistaken view of the law, for an order to permit the sheriff to take a redelivery bond, in no wise delayed the prosecution of plaintiff’s suit. The case is not similar to one where the party has been served with process, but failed to appear and the plaintiff appeared in proper time and took his judgment. In such a case, to set aside the judgment is to punish the plaintiff for the negligence of the defendant.
The premises considered, we are of the opinion that when the defendant made it appear to the court that its counsel was not authorized to enter its appearance for the October term, and that in making the application for a bond, the attorney was under the impression that it was necessary to obtain an order of the court before the sheriff was authorized to accept a redelivery bond, and that the attorney appeared for no other purpose, and subsequently, when he learned that plaintiff was ■construing his conduct as an appearance, immediately withdrew his application, and that defendant was- claiming that it had a meritorious defense to plaintiff’s demand, and that it had paid plaintiff all sums due him for services rendered defendant, the court should have set aside the default judgment.
The appearance of the defendant for the purpose .of asking to have the default judgment set aside, and alleging that it had a meritorious defense to plaintiff’s cause of action, was such an appearance by defendant that it was in court for all purposes at the time the court overruled the motion to set aside the judgment, and it will not be necessary for the plaintiff to take further steps to secure jurisdiction over the person of the •defendant.
The judgment will be .reversed and the cause remanded, with directions to the trial court to set aside the default judgment and give the defendant an opportunity to plead to the merits.
All concur.