The view I take of this case compels me to dissent from the conclusion reached by Judge BLAND. The motion sets out that defendant has a good and valid defense to the cause of action stated in plaintiff's petition, the defense being that defendant never borrowed and never agreed to pay plaintiff the sum of $500, or any other sum.
The defendant was in no wise negligent. The moment he was served with summons, he employed an attorney. *Page 14 Nor was there bad faith, lack of diligence or any other manifestation of a disposition on the part of any one to trifle with the case. There is no question but that defendant's attorney was ill, and, as the court found, "was in such condition physically that he was not able to try any of his cases."
The judgment overruling the motion to set aside the default does state that "under the rules of the court all agreements shall be in writing, and the alleged agreement not being in writing, and the attorneys for the plaintiff and defendant not being in agreement in regard to the terms of said agreement, the alleged agreement cannot be considered by the Court." And then, after stating that the attorney was ill, as above set forth, the judgment further recites: "The Court, however, holds that he has no jurisdiction to sustain the motion to set aside said judgment of default at this term of court in the absence of any agreement, for the reason that the term of court at which such judgment of default was rendered, has expired." As the motion to set aside was filed at the same term the default judgment was rendered and no action taken on the motion at that term, the motion carried the whole matter over to the next term and gave the court jurisdiction at the subsequent term to set the judgment aside, if the circumstances warranted it. [Harkness v. Jarvis,110 Mo. App. 277, s.c. 182 Mo. 231; Dower v. Conrad, 232 S.W. 174.] Indeed, jurisdiction to set it aside at the later term in conceded.
The judgment on its face clearly shows that the reason the court refused to set aside the default judgment at the subsequent term was because the court was under the impression that he had no power to set aside the same at the later term since, under the rules, he could not consider the agreement, it not being in writing. But the court did have such jurisdiction, if the circumstances warranted it. The court could and should have considered those circumstances and not refused to consider *Page 15 that an agreement was made, for the facts stated in opposing counsel's affidavit show that there was an agreement to continue, on account of the attorney's illness, not merelycertain of his cases, but the other cases in which he was interested, for they went over the docket and agreed to continue them, but the contention is that as this particular case was not mentioned, there was no agreement as to it. The most that can be said about the matter is that both parties thought they were agreeing to continue all of the sick attorney's cases; and whether this particular case was specifically considered or not, makes no difference. Even if it turned out that, by mistake, this particular case was not specifically mentioned, this should not exclude it from the operation and effect of the agreement. The very best that can be said against the agreement is that there was a misunderstanding between the attorneys as to this particular case, that is, in the sense that the sick attorney thought it was specifically included, while the opposing counsel did not know it was even eligible for inclusion, as he did not know it was the sick attorney's case. Under the circumstances the defendant was entitled to have the default set aside. No injustice could have come to plaintiff by setting aside the default while very grave injustice may be done defendant if he is not permitted to make his defense. In my view of the matter, there are present none of the elements upon which the appellate courts have justified the refusal to set aside a default, while, on the contrary, the situation and the conceded circumstances herein call for the sustaining of the motion. [Perkins v. Travis, 94 S.W. 730, 731; Citizens Bank of Pomona v. Martin,171 Mo. App. 194, 200; Scott v. Smith, 133 Mo. 618, 624.] ARNOLD, J., concurs. *Page 16