McDonald County Mercantile Bank v. Harp

779 S.W.2d 21, 1989 Mo. App. LEXIS 1426, 1989 WL 116582
CourtMissouri Court of Appeals
DecidedOctober 6, 1989
DocketNo. 16006
StatusPublished
Cited by3 cases

This text of 779 S.W.2d 21 (McDonald County Mercantile Bank v. Harp) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McDonald County Mercantile Bank v. Harp, 779 S.W.2d 21, 1989 Mo. App. LEXIS 1426, 1989 WL 116582 (Mo. Ct. App. 1989).

Opinion

CROW, Presiding Judge.

Defendants Oliver B. Harp and Joyce M. Harp appeal from a judgment denying their motion to set aside a judgment against them in the principal amount of $187,931.20 in favor of McDonald County Mercantile Bank (“the Bank”). Defendants maintain the trial court erred in refusing to set aside the money judgment in that they were entitled to written notice from the court clerk that said judgment had been entered but the clerk failed to send such notice, and they showed good cause for setting the judgment aside.

The litigation began June 30, 1986, when the Bank filed suit against defendants on four promissory notes. Defendants retained Abe R. Paul, an attorney-at-law, to represent them. Paul filed an answer on defendants’ behalf July 28, 1986.

The deposition of defendant Oliver B. Harp was taken September 5, 1986, at [22]*22Paul’s office. Harp admitted he was in default on all the notes and was unable to pay them.

On July 7, 1987, the clerk of the circuit court sent written notice to Paul and the Bank’s lawyer that the case was set for “non-jury trial” August 17, 1987. Paul received the notice July 8 or 9.

On the trial date the Bank’s lawyer called Paul, asking whether he was going to appear. Neither Paul nor the defendants attended the trial. The Bank appeared by its lawyer and presented evidence.

The next day the Bank’s lawyer sent a letter to the trial court, accompanied by a proposed judgment for entry. The Bank’s lawyer sent Paul a copy of each. On August 19, 1987, the trial court signed and filed the proposed judgment supplied by the Bank’s lawyer, without change.

On November 20, 1987, defendants, represented by their present counsel, filed a “petition” to set aside the judgment on sundry grounds, none of which are pertinent to this appeal. Twenty days later defendants filed a motion to set aside the judgment on the ground that they did not receive notice of its entry from the court clerk as required by Rule 74.78, Missouri Rules of Civil Procedure (18th ed. 1987), which read:

“Upon the entry of [a] ... judgment, the clerk shall serve a notice of the entry by mail in the manner provided in Rule 43.01 upon every party affected thereby who is not in default for failure to appear and who was not present in court in person or by attorney at the time of the entry of such ... judgment. If such notice is not given, said ... judgment shall be set aside for good cause shown upon written motion filed within 6 months from the entry of the ... judgment.”

After further procedural steps that need not be enumerated, the trial court conducted an evidentiary hearing on the issues raised by defendants’ post-judgment pleadings. At the hearing defendant Oliver Harp testified he never received notice of the trial setting and first became aware of the judgment on October 5 or 6,1987, when his wife’s father told him about it. Harp avowed he never received a copy of the judgment from the court clerk.

Paul testified he did not inform defendants of entry of the judgment until October of 1987, when he encountered Oliver Harp on the street by chance. Paul’s testimony: “[H]e inquired about the judgment. And I told him that to the best of my knowledge there had been and that I would check my file, which I did a day or two [later] and sent him a letter.” As to why neither he nor defendants appeared at trial August 17, 1987, Paul’s testimony was:

“Q. ... Did Mr. Harp or his wife or either of them for the other, notify you or advise you not to contest this matter and not to — not—they didn’t expect to go to trial?
A. I can’t say that it was ever put in those words.
Q. But was that your understanding?
A. That was my understanding.
Q. As their attorney then—
A. My understanding was ... that I would do the best I could to put it off as long as possible, and that — and that there really wasn’t a contested issue with respect to the amount that was due.
Q. All right. So, the, the—
A. And that’s, frankly, the reason I didn’t send them the notice [of the trial setting],
Q. ... was it your understanding from your clients, whom you represented in this case, that they would default and not contest it at trial?
A. That, that was my understanding and that was the reason the notice wasn’t sent.
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Q. Mr. Paul, whatever your understanding was, the Harps never told you to let a judgment be entered against them, did they?
A. No, they didn’t say that.
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Q. ... And in fact, you did not notify them of a judgment until more than 30 days after it was entered?
[23]*23A. That’s also true.”

The trial court’s judgment denying defendants’ prayer to set aside the judgment of August 19, 1987, was accompanied by findings of fact and conclusions of law. The findings of fact included these:

“8. That Defendants Harp instructed their Attorney, Abe Paul, to delay this case as long as he could and that they would not appear nor contest the case at trial.
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17. That there is no record in the file of the case that the Clerk of the Circuit Court sent a notice of the Entry of Judgment to Oliver Harp and Joyce Harp.
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19. That Attorney Abe R. Paul did not receive a signed copy of the Judgment Entry.
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21. That [defendants] learned of the Judgment being entered sometime in October, 1987 and made an inquiry to Attorney Abe R. Paul when [Oliver Harp] saw [Paul] ... in Neosho, Missouri.
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23. That at all times after August 18, 1987, Attorney Abe R. Paul knew that the Judgment was entered and for what amounts.”

The trial court’s conclusions of law included these:

“1. That Attorney Abe R. Paul was the Attorney of record for Defendants Oliver Harp and Joyce Harp and represented them at all times through the trial of this case held on August 17, 1987.
2. That Harp’s [sic] counsel had been duly notified of the trial setting on [the Bank’s] action and this notice was binding on the Harp’s [sic].
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5. That counsel for Harp had actual knowledge of the form of the Judgment Entry, the amounts provided therein, and that knowledge and notice was binding on the Harp’s [sic].
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8. That there is no evidence of ab-dondment [sic] of the Harp’s [sic] by counsel, Abe R. Paul.”

Rule 74.78, Missouri Rules of Civil Procedure (18th ed. 1987), quoted supra, cited by defendants in their motion in the trial court to set aside the judgment, was repealed effective January 1, 1988. Missouri Rules of Court (19th ed. 1988), p. 287.

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Cite This Page — Counsel Stack

Bluebook (online)
779 S.W.2d 21, 1989 Mo. App. LEXIS 1426, 1989 WL 116582, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcdonald-county-mercantile-bank-v-harp-moctapp-1989.