author: PER CURIAM.

text:
    Richard KOLLMEYER, by his next friend, Evelyn Kollmeyer, Plaintiff-Appellant, v. John Joseph WILLIS, Defendant-Respondent.
    No. 8544.
    Springfield Court of Appeals. Missouri.
    Sept. 20, 1966.
    Motion for Rehearing or to Transfer to Supreme Court Denied Oct. 11, 1966.

      Farrington & Curtis, Thomas G. Strong, Richard K. Wilson, David G. Holden, Springfield, for plaintiff-appellant.
    No appearance for defendant-respondent.
   PER CURIAM.

In this factually-unique case, plaintiff Richard Kollmeyer, a minor ten years of age when struck and injured in Springfield, Missouri, on October 24, 1964, by a motor vehicle driven by defendant, appeals from a final judgment for $22,500 entered in his favor and against defendant John Joseph Willis in the Circuit Court of Greene County on December 15, 1965. Plaintiff’s complaint is that a default judgment for $25,000 against defendant (hereinafter referred to as the default judgment) theretofore entered in the same circuit court on April 30, 1965, should not have been set aside on May 27, 1965, and that the default judgment should have been reinstated in response to plaintiff’s requests for that relief in motions presented at different stages of the litigation after May 27. Notwithstanding the amount of the final judgment, we have appellate jurisdiction because the amount in dispute is only the difference between the default judgment of $25,000 and the final judgment of $22,500, or the sum of $2,500. Art. V, Sec. 3, Mo.Const. of 1945; Sec. 477.040. Cf. Robinson v. Beatrice Foods Co., Mo.App., 260 S.W.2d 346, 348 (1). Plaintiff’s attorneys have filed an excellent brief, but no appearance has been made and no brief has been presented on behalf of defendant.

Suit was instituted and defendant was served during December 1964. On January 4, 1965, defendant appearing by Hosmer and Newberry, attorneys, timely filed (a) motion to dismiss on the ground that the petition did not state a cause of action on which relief could be granted and (b) motion for costs. On January 11, 1965, “by agreement” defendant’s motion to dismiss was overruled and his motion for costs was sustained with plaintiff ordered to deposit $75 in cash or to file an approved cost bond within twenty days thereafter. No answer was filed within ten days after defendant’s motion to dismiss was overruled by agreement [Rule 55.27(c)] or, for that matter, at any time prior to entry of the default judgment on April 30, 1965; but, on February 16,1965, plaintiff deposited $75 in cash with the circuit clerk.

At 4 P.M. on April 21,1965 (so each paper itself recites), three instruments were signed, to wit, (1) an “Application for Leave to Withdraw as Attorneys for Defendant” signed by Hosmer and Newberry, (2) a “Consent to Withdrawal of Attorneys” signed by defendant and acknowledged before David G. Holden, an attorney of record for plaintiff, as notary public, and (3) a “Withdrawal as Attorneys of Record” signed by Hosmer and Newberry.

At 9 A.M. on April 22, 1965 (so this paper recites), defendant acknowledged receipt of a copy of a typewritten “Notice” that the case would be called for trial on Friday, April 30, 1965, in the Circuit Court of Greene County, Missouri, at which time and place he might appear and defend if he so desired, but that, if he failed to do so, “judgment by a default will be taken against you.” The “Notice” bore the handwritten signature of David G. Holden on a line under which the name of “Thomas Strong,” another attorney of record for plaintiff, had been typed.

On April 30, 1965, the three above-described instruments dated at 4 P.M. on April 21, 1965, were filed in the circuit court; a record entry was made that Hos-mer and Newberry were permitted to withdraw as attorneys for defendant; and the above-described “Notice” dated at 9 A.M. on April 22, 1965, and bearing defendant’s acknowledgment of service thereof, was filed. The record shows that thereafter on April 30, 1965, plaintiff appeared in person, by next friend and by attorney, but defendant “fails to appear and makes default,” whereupon the court heard plaintiff’s evidence, found the issues in his favor, and entered judgment against defendant in the sum of $25,000.

On May 14, 1965, “defendant filed” his “Motion to Set Aside Judgment and for New Trial” (hereinafter referred to as the motion to set aside), opening with the recitation “Comes now defendant, John Joseph Willis, by and through Harold J. Fisher . . . ,” identified in the motion as attorney for Western Fire Insurance Company (hereinafter called Western) “which issued its policy of automobile liability insurance to defendant insuring the automobile which defendant was operating at the time of the incident” described in plaintiffs petition. The first part of the motion to set aside supported the assertion that “defendant has a meritorious defense” to plaintiff’s cause of action, in that (so it was averred) as defendant was southbound on Dysart Street and plaintiff was “running north upon the traveled portion of the street, defendant steered to his left to avoid striking plaintiff but . . . plaintiff abruptly changed his path of travel and ran to his right directly into the path of defendant’s motor vehicle . . . after plaintiff and defendant’s vehicle were in such close proximity [as] to make it impossible for defendant to thereafter avoid striking plaintiff.”

The second part of the motion to set aside was devoted to the proposition that “defendant’s failure to appear and defend . . . was excusable under the circumstances of the instant case.” A brief summarization of the averments in the motion follows. “There was and is a dispute between Western . . . and defendant ... as to whether the policy [issued by Western to defendant] was void ab initio so that there would be no coverage under the said policy afforded to defendant . . . for the accident” in suit. To resolve that dispute, Western instituted a declaratory judgment action in the Circuit Court of Greene County, Missouri, on December 7,1964. On April 12, 1965, Western made written request of the court that the declaratory judgment action be set for trial; and, on April 19, 1965, plaintiff’s attorney Strong made like written request.

Prior to “answer time” in the damage suit, Western “advised defendant . that it was denying any coverage under its policy,” and defendant then employed attorney Newberry. Upon learning of such employment, Fisher “conferred on numerous occasions” with Newberry and “was assured that defense would be offered to [plaintiff’s] petition.” In turn, Fisher assured Newberry that, “if it was determined in the declaratory judgment action that [Western’s] policy . . . was in effect,” Newberry would be paid for services rendered in such defense. The motion to set aside then alleged that no notice either of the withdrawal of Hosmer and Newberry as defendant’s attorneys or of the setting of the damage suit for trial on April 30, 1965, was given to Fisher or the Western.

Finally, the motion to set aside averred that, until the declaratory judgment action might be determined “favorably to Western . . . [it] has a direct interest in the defense of the [damage suit] . . . ; that its failure to appear in defense of plaintiff’s petition when judgment was rendered on April 30, 1965, was excusable in that it had been assured that a defense would be made by defendant’s attorney, Mr. John New-berry; it had no notice that such defense was not being made, that the attorney, in fact, had withdrawn, and that the case had been set for hearing on April 30, 1965.”

On May 24, 1965, the affidavit of attorney Newberry was filed in which he stated (1) that Western had advised defendant and his attorneys, Hosmer and Newberry, that Western “did not afford coverage with regard to the [damage suit] and . would not defend said action . . . ,” (2) that Western had “failed and refused to defend” the damage suit until after judgment had been rendered for plaintiff on April 30, 1965, and (3) that “affiant [New-berry] never contracted with Western . . . to defend [the damage suit] in behalf of said company and never assured said company, or its attorneys, that said action would be defended,” although, in conversation with Western’s attorneys, Newberry or his partner, John Hosmer, “did mention that they had been retained by [defendant] to represent him and that they would protect the interests of their said client to the best of their ability, and that said attorneys have in the past, and in the [declaratory judgment action] even now are so representing said client.”

On May 24, 1965, plaintiff’s attorney Strong filed an affidavit first stating that defendant had delivered summons and petition in the damage suit to Western; that Western had refused to defend the suit; that thereafter defendant had retained Hos-mer and Newberry to represent him both in the damage suit and in the declaratory judgment action; that defendant, having failed to file an answer in the damage suit, had been in default therein from and after January 21,1965; and that Fisher’s firm (Allen, Woolsey and Fisher), as attorneys for Western, “had knowledge of such fact.” (The source of Strong’s information as to the “knowledge” of Fisher’s firm concerning defendant’s default was not disclosed.) This affidavit then quoted in part the “Notice to Lawyers” in the printed docket delivered to members of the Greene County Bar, including Fisher’s firm, on or about March 30, 1965, that the cases (of which the damage suit was one) then pending in Division II of the Circuit Court of Greene County would be called at 9 A.M. on April 6, 1965, and that the date and time of the pre-trial conference in each such case would be announced at the docket call. Affiant Strong then averred in substance that members of Fisher’s firm were present in the courtroom during the docket call on April 6, 1965, when a pre-trial conference in the instant case was scheduled for 4 P.M. on April 21,1965; but that neither Western nor Fisher’s firm was represented at that pretrial conference, when “the court was notified by the law firm of Hosmer & New-berry that it would withdraw as attorney for [defendant] and that a default judgment could be taken against him” and when the court announced that it would hear “said default” on April 30, 1965. Strong’s affidavit then closed with statements that following the pre-trial conference Western and Fisher’s firm “knew, or by the exercise of ordinary diligence could have discovered,” that the damage suit had been set for trial on April 30, 1965, at which time a default judgment would be taken unless Western “entered an appearance and announced that it would defend”; and that attorney Fields, one of Fisher’s partners, was present in the courtroom on April 30, 1965, when the court entered the default judgment and during “some or all of the time” plaintiff’s evidence was being introduced, but did not seek to defend or be heard.

On May 27, 1965, and thus within thirty days after entry of the default judgment on April 30, 1965 [see Rule 75.01], the Honorable Douglas W. Greene, Judge in Division II, entered an order sustaining defendant’s motion to set aside “for lack of notice to Western”; and on June 9, 1965, Fisher’s firm filed an answer on behalf of defendant.

On June 11,1965, plaintiff filed motion to strike defendant’s pleadings and issue execution (hereinafter referred to as the first motion to strike) on the theory that defendant’s motion to set aside the default judgment “was insufficient to authorize or support” the order setting aside the judgment, that “the trial court abused its discretion in setting aside” the judgment, and that the court’s order “was made without jurisdiction and is a nullity.” The same motion prayed in the alternative that the court strike defendant’s pleadings and enter judgment for plaintiff in the sum of $25,000. On June 15, 1965, plaintiff’s said motion was overruled.

On October 18, 1965, “pursuant to agreement of the judges” the damage suit was transferred to Division III, in which the Honorable James H. Keet, Jr., presided.

The fact that the transcript on appeal obviously was incomplete, in that it did not include several pleadings and papers to which reference was made, prompted us to direct ex mero motu, as we are empowered to do in the exercise of our discretion, that the Circuit Clerk of Greene County send up the original file in its entirety and that same be made a part of the transcript on appeal, in order that all relevant pleadings and papers might be examined and considered insofar as their content might shed light upon the conduct of the interested parties and their attorneys at and prior to the setting aside of the default judgment.

On October 27, 1965, Jessie M. Ross, the notary public before whom the deposition of defendant’s attorney Hosmer had been taken, filed in this case certain questions propounded by Fisher and the objections thereto interposed by Hosmer himself and by plaintiff’s attorney Strong, which were certified to the circuit court for rulings on the objections. The plain purpose of the certified questions was to elicit information as to whether or not plaintiff and defendant had entered into a contract of the character legitimatized by Section 537.065, by which plaintiff might have agreed that he would not attempt to collect from defendant personally any judgment obtained in the damage suit. When the first such question was propounded to him, Hosmer responded “now, here, I think I should inject the client-attorney privilege; I say that that is probably an invasion of that confidential relationship,” whereupon plaintiff’s attorney Strong interposed the formal objection that “in vievv of Mr. Hosmer’s statement, I would object to the question on that basis, that it calls for a confidential communication.” On that ground, Hosmer refused to answer all questions designed to disclose either the existence vel non of a contract of the above-stated character or why he and his partner Newberry had withdrawn during April 1965 as attorneys for defendant in the damage suit.

On December 7, 1965, Fisher as defendant’s attorney filed an application for continuance of the damage suit which had been set for trial on December 9, 1965. The essence of the application was that defendant could not be found and that he had failed to cooperate with Western in defense of the damage suit as was required by the policy issued to him, but that a continuance was sought in order that Fisher might make further efforts to locate defendant.

When the application for continuance was denied on December 9, 1965, Fisher moved for, and was granted, leave to withdraw as defendant’s attorney. Thereafter on the same date, plaintiff’s second motion to strike defendant’s pleadings and reinstate the default judgment of April 30, 1965 (essentially the same as his first motion to strike of June 11, 1965) was filed and overruled; an interlocutory judgment of default was entered against defendant; upon waiver of trial by jury, evidence was heard on the issue of damages; plaintiff’s third motion to reinstate the default judgment (again essentially the same as his first motion to strike) was filed; and the court took the case under advisement.

On December 15, 1965, the court overruled the third motion to reinstate the default judgment and entered judgment for plaintiff in the sum of $22,500 (hereinafter referred to as the final judgment).

On December 24, 1965, plaintiff filed his motion to set aside the final judgment and issue execution on the default judgment of April 30, 1965, or in the alternative to reinstate the default judgment, or in the further alternative to enter judgment for plaintiff in the sum of $25,000 notwithstanding the final judgment. This motion included not only all of the averments in plaintiff’s first motion to strike but also a detailed review of the case designed to support movant’s contention that the court had erred in ■setting aside the default judgment. Plaintiff’s said motion having been overruled on December 31,1965, he appealed.

We agree with plaintiff that, upon this appeal, he is entitled to a determination of his complaint, timely made and carefully preserved at each stage of the case, that the trial court erred in setting aside the default judgment. Sec. 512.020; Farrell v. DeClue, Mo.App., 382 S.W.2d 462. See Farrell v. DeClue, Mo.App., 365 S.W.2d 68.

Before proceeding to a consideration of the merits of the appeal, certain preliminary observations would seem to be appropriate. Defendant’s motion of May 14, 1965, to set aside the default judgment, with attorney Fisher’s verification under oath that “the facts contained [therein] are true and correct to my best knowledge and belief,” was accepted in the trial court as evidence of the facts therein alleged; and, plaintiff having made no objection either in the trial court or on appeal to treating the verified motion as Fisher’s affidavit, we likewise accept it as such. Consult Garrison v. Schmicke, 354 Mo. 1185, 193 S.W.2d 614, 616(7); Osage Inv. Co. v. Sigrist, 298 Mo. 139, 250 S.W. 39, 40(2). Within ten days after the filing of defendant’s motion to set aside, plaintiff filed the opposing affidavits of Newberry and Strong. Rule 78.03.

Although no oral testimony was offered upon the motion to set aside, the perspicacious trial judge who ruled that motion was in position to have had relevant personal knowledge not reflected by the cold transcript, which he had a right to consider in connection with, and in evaluation of, the affidavits. For example, it was averred in an affidavit filed in opposition to defendant’s motion to set aside that one of Fisher’s partners was present in the courtroom on April 30, 1965, when the court entered the default judgment and during “some or all of the time” plaintiff’s evidence was being introduced. Of course, the trial judge himself was in position to have known who was present on that occasion. And no doubt he had personal knowledge as to whether or not the partners and associates in Fisher’s firm, off icing in the same city and practicing regularly in his court, were of such number that, absent some specific notice, one partner fairly could not have been charged with knowledge of the identity and status of all cases being handled by every partner and every associate.

The trial judge also could have examined the pleadings and papers in the original file, as we have done following transmittal of the file to this court. And, examining those pleadings and papers, it would have required none of the specialized skill or competence of a professional document examiner for the trial judge to have observed, as we have, that plaintiff’s petition was written in pica type on paper watermarked “Eaton’s Corrasable Bond”; that defendant’s motion to dismiss and motion for costs filed by Hosmer and Newberry on January 4, 1964, were written in smaller elite type on paper watermarked “Four Star Bond”; but that (a) the three instruments dated at 4 P.M. on April 21, 1965, to wit, “Application for Leave to Withdraw as Attorneys for Defendant” signed by Hosmer and New-berry, “Consent to Withdrawal of Attorneys” signed by defendant and acknowledged before David G. Holden, an attorney of record for plaintiff, as notary public, and “Withdrawal as Attorneys of Record” signed by Hosmer and Newberry, (b) the “Notice” of the trial setting on April 30, 1965, served on defendant by Holden at 9 A.M. on April 22, 1965, and (c) Newberry’s affidavit filed by plaintiff in opposition to defendant’s motion to set aside, were written in pica type on paper watermarked “Eaton’s Corrasable Bond.”

Reviewed in its entirety, the record indicates an uncommon and unexplained measure of cooperation between plaintiff’s attorneys on the one hand and defendant and his personal attorneys on the other hand. We hasten to emphasize that all of the above-mentioned attorneys are known to us as gentlemen of professional honor and integrity, and that their singularly cooperative course of action in the damage suit might have been referable to a contract of the character legitimatized by Section 537.065 (hereinbefore quoted marginally in note 4). However, we do not reach the question as to whether such course of action would have been within the contemplation and blessing of that legislative enactment, for the record does not show the execution or existence of any such contract but, on the contrary, reflects only the deliberate refusal of defendant’s personal attorney, supported by like objections on the part of plaintiff’s attorney, to divulge any information on this subject in response to specific inquiry by Western’s attorney. We must take the record as it comes to us [Bennett v. Wood, Mo., 239 S.W.2d 325, 327(2); McCandless v. Manzella, Mo., 369 S.W.2d 188, 191(6); Schreck v. Parker, Mo.App., 388 S.W.2d 538, 544(12)] and must determine the instant appeal without reference to Section 537.065 or any contract executed pursuant thereto.

Our reports are liberally sprinkled with literally scores of cases dealing with the setting aside of default judgments, not only in response to timely motions but also in the exercise of the inherent power of trial courts to do so while a judgment remains in the breast of the court, formerly during the judgment term and now “for good cause” [Rule 75.01] during the period of thirty days after entry of judgment. (All emphasis herein is ours.) In the case at bar, the trial court’s order setting aside the default judgment referred to defendant’s motion to set aside. However, that order may be treated in legal contemplation as action taken by the court of its own initiative but at defendant’s suggestion, and should be sustained here if we properly may conclude that, in setting aside the default judgment “for lack of notice to Western,” the trial court acted “for good cause.” Rule 75.01. In fact, plaintiff’s counsel concede in their brief “that a defendant to an action, for good cause, has a right to have a ■default judgment set aside.” But counsel’s position is that Western “had no standing to move for the vacation of the judgment” and that, even if it did, neither plaintiffs failure nor Newberry’s failure to notify Western of the trial setting or of the withdrawal of Hosmer and Newberry as defendant’s attorneys would support the trial court’s order setting aside the default judgment.

Did Western have any standing to move for vacation of the default judgment? For the purposes of this inquiry, we assume (a) that, as plaintiff insists, defendant personally made no showing which would have entitled him to a new trial, since he had actual notice of the trial setting and had been in default in his pleadings for more than three months prior thereto, and (b) that the motion to set aside the default judgment, although filed in the name and as the motion of defendant (of which fact no complaint has been made by plaintiff either in the trial court or on appeal), actually reflected a plea by Western, who was (to adopt the characterization of plaintiff’s counsel) “the only party interested in vacating the judgment.” Nevertheless, it does not follow that, in the circumstances of this case, Western “had no standing to move for vacation of the judgment.”

The general rule, upon which plaintiff relies, is that a stranger to the record has no right to move for vacation of a judgment. 49 C.J.S. Judgments § 293b, p. 540. But plaintiff overlooks the limitation that, in some instances, one not a party to the record, whose rights are injuriously affected by a judgment as the rights of an indemnitor may be, will be heard upon his motion to set aside a judgment. The automobile liability policy issued by Western to defendant was essentially a contract of indemnity; the relationship between the parties to the contract was that of indemnitor and indemnitee; and, if the default judgment had not been set aside, Western would have been bound by that judgment as to all issues necessarily determined thereby, including the issues as to defendant’s liability to plaintiff and the amount of damages to be awarded for plaintiff’s injuries.

We have not overlooked the fact emphasized by plaintiff that Western had instituted a declaratory judgment action in which it had asserted that the policy issued to plaintiff was void ab initio, and that its denial of coverage under the policy had caused defendant to employ Hosmer and Newberry as his personal attorneys. But the policy contract between Western and defendant could not properly have been treated other than as a valid and binding instrument unless and until there had been a final judicial declaration to the contrary; and, when the default judgment in the damage suit was entered on April 30, 1965, the declaratory judgment action remained pending and undetermined upon the request of Western’s attorney on April 12, 1965, that said action be set for trial and the like request of plaintiff’s attorney on April 19,1965, only two days before the pretrial conference in the damage suit when defendant’s personal attorneys withdrew and that case was set for taking the default judgment.

Frankly conceding that they have found no case “with facts in point on the issue before us,” plaintiff’s counsel cite Garcia v. Gallo, 176 Cal.App.2d 658, 1 Cal.Rptr. 539, and Ring Refrigerator & Ice-Machine Co. v. St. Louis Ice Mfg. & Cold-Storage Co., C.C.Mo., 67 F. 535, in support of their assertion that Western had no standing to move for vacation of the default judgment. Neither case is persuasive here. As counsel recognize, in Garcia, supra, the appellate court did not determine the insurer’s right to move for vacation of the default judgment taken against defendant-insured, but affirmed the trial court by concluding that the affidavits submitted in support of insurer’s motion were “wholly insufficient to justify any finding” of a statutory ground for relief [1 Cal.Rptr. at 544] — a sound conclusion upon the facts of that case. And in Ring, supra, an equity suit for alleged infringement of plaintiff’s patent relating to a gas pump installed in defendant’s plant by the manufacturer, the court, in denying the manufacturer’s after-judgment motion to set aside the decree against defendant, quoted as “peculiarly applicable” the statement that “ ‘[w]hile the court may in this suit construe the complainant’s patent . . . that would not determine against petitioner [manufacturer] the fact of infringement, which would he, after all, the main question in the subsequent suit, if one should be brought against the present petitioner.’ ” 67 F. at 539-540. In the circumstances of the case at bar, we are of the opinion that it was permissible and proper for the trial court to entertain and rule on its merits defendant’s (Western’s) motion to set aside the default judgment.

Was the default judgment set aside “for good cause”? The setting aside of a default judgment is a matter resting largely in the discretion of the trial judge, which is “ ‘not a mental discretion, to be exercised ex gratia, but a legal discretion, to be exercised in conformity with the spirit of the law, and in a manner to subserve, and not impede or defeat, the ends of substantial justice.’ ” Hall v. McConey, 152 Mo.App. 1, 11, 132 S.W. 618, 621; Savings Finance Corp. v. Blair, Mo.App., 280 S.W.2d 675, 678(8). And the principle, widely recognized in other categories of litigation [see Levee Dist. No. 4 of Dunklin County v. Small, Mo.App., 281 S.W.2d 614, 618, and cases cited in note 2], that each case must rest and be ruled upon its own particular facts is especially applicable in an inquiry as to whether a trial court has been guilty of an abuse of discretion in setting aside, or in refusing to set aside, a default judgment. As our predecessors on this bench so aptly phrased it, “these cases, involving the wisdom of trial judges in the exercise of the discretion vested in them by law, are in the nature of things to be considered one at a time, and not as an integral branch of our system of jurisprudence, where we can evolve certain rules of conduct that will fit any certain number or character of cases.” Parks v. Coyne, 156 Mo.App. 379, 391, 137 S.W. 335, 339(3). See Perkins v. Travis, Mo.App., 194 S.W. 730, 731.

One of the statements most frequently recurring in cases of this character is that an appellate court is less likely to interfere when the trial court has set aside a default judgment than when it has not. This is for the reason that when the judgment is set aside, the case is reopened and justice will yet be done on the merits [Whitledge v. Anderson Air Activities, Mo., 276 S.W.2d 114, 116; Hartle v. Hartle, Mo.App., 184 S.W.2d 786, 788; Parks, supra, 156 Mo.App. at 395, 137 S.W. at 341], and is in keeping with and in furtherance of the policy of the law to try and determine cases on their merits when that will not result in harmful delay.

In the final analysis, the primary purpose and broad objective of all litigation are, simply and succinctly stated, to do justice. Levee Dist. No. 4 of Dunklin County, supra, 281 S.W.2d at 618, and cases there cited. To that end, many judgments have been set aside by trial courts in the exercise of their inherent power so to do, while the judgment remains in the breast of the court, “in the interest of justice” [Ewart v. Peniston, 233 Mo. 695, 136 S.W. 422, 425(4); Cherry v. Cherry, 225 Mo.App. 998, 35 S.W.2d 659, 660(3)] or “as justice demands” [Dietrich v. Dietrich, Mo.App., 28 S.W.2d 418, 419 (2); Faulkner v. F. Bierman & Sons Metal & Rubber Co., Mo.App., 294 S.W. 1019, 1020(2)—see Aull v. St. Louis Trust Co., 149 Mo. 1, 50 S.W. 289, 292] or “as justice requires” [Reid v. Moulton, Mo., 210 S.W. 34, 36(5); Ekonomou v. Greek Orthodox Church St. Nicholas, Mo.App., 280 S.W. 57, 58—see Wooten v. Friedberg, 255 Mo. 756, 198 S.W.2d 1, 5(1)] or “when that is necessary to prevent injustice.” People’s Bank of Holcomb v. Bullock, 216 Mo.App. 492, 270 S.W. 119, 120(2).

As we have noted, the trial court has, during the period of thirty days after entry of judgment, the same inherent power to vacate a judgment “for good cause” as, under prior practice, it did during the judgment term. Rule 75.01 and cases cited in note 8. In view of the foregoing principles recognized in default judgment cases, it is entirely understandable that, insofar as we have been able to determine, no Missouri court has undertaken to define “good cause” in a case involving the vacation of a default judgment; and it would seem both unnecessary and unwise for us to do more than suggest that, in this as in other categories of cases, “ ‘[g]ood cause’ depends upon the circumstances of the individual case, and a finding of its existence lies largely in the discretion of the officer or court to which the decision is committed” [Wilson v. Morris, Mo., 369 S.W.2d 402, 407(7)—see also Buttinger v. Ely & Walker Dry Goods Co., Mo.App., 42 S.W.2d 982, 984], subject to the limitation that a judgment may not be set aside arbitrarily or capriciously [Willis v. Willis, Mo.App., 274 S.W.2d 621, 625 (5)] or without giving the party to be affected adversely reasonable notice and an opportunity to be heard. Savings Trust Co. of St. Louis v. Skain, 345 Mo. 46, 131 S.W.2d 566, 574(14).

In insisting that the trial court did not act “for good cause” in setting aside the default judgment “for lack of notice to Western,” plaintiff argues that his failure to notify Western of the trial setting and of the withdrawal of defendant’s attorneys could not have furnished “good cause” for the court’s order “since plaintiff had no legal or moral obligation to furnish such notice” to Western. For the purposes of this opinion, we may so assume without, however, considering or ruling plaintiff’s quoted contention on its merits.

However, defendant’s (Western’s) motion to set aside and plaintiff’s opposing affidavits presented to the trial court conflicting statements as to whether or not Newberry, defendant’s personal attorney, had assured Fisher, Western’s attorney, that the damage suit would be defended, thus raising an issue of fact which we prefer to regard as an unfortunate misunderstanding between honorable members of the bar. Even so, this issue is “deemed found in accordance with the result reached” [Rule 73.01(b)], and we proceed on the premise that the trial court found that Fisher was given such assurance that the damage suit would be defended and that he had not known prior to entry of the default judgment that, in fact, no defense was being made and defendant’s personal attorneys had withdrawn. And, finding that such assurance of defense had been given to Fisher, the trial court no doubt further found that Fisher reasonably might have relied, and actually did rely, thereupon. For courts (at least those in this geographical area) well know that, in representing their clients, attorneys frequently depend upon oral assurances'by their brethren of the bar concerning numerous semi-routine matters such as settings and resettings, continuances, depositions, appearances, delays in pleading, and many others; that this practice is a useful and time-saving tool of the profession, which facilitates the transaction of legal business, expedites the handling and disposition of litigation, and works to the ultimate benefit of clients; and that the principle that one attorney’s word to another is his honor has become a basic precept and article of faith in the unwritten moral and ethical code of our ancient and honorable profession.

In the case at bar, we have a combination of two factors not present in any case cited or found, namely, (a) the assurance by one of defendant’s personal attorneys to an attorney for defendant’s insurer-indemnitor that the case would be defended, followed by a withdrawal of those attorneys and setting of the case for the taking of a default judgment without notice to insurer’s-indemnitor’s attorney, coupled with (b) an uncommon and unexplained measure of cooperation between plaintiff’s attorneys and defendant’s personal attorneys. Expressing no opinion and intending no holding except as to the specific situation presented by the record before us, we are of the considered conviction that, in the exercise of the judicial discretion vested in him, the trial judge reasonably might have found that “lack of notice to Western” constituted “good cause” to set aside the default judgment and that, upon this appellate review, we may not properly declare that he abused his discretion in acting for that stated reason.

Under one point in their brief, plaintiff’s counsel cite cases [Levee District No. 4 of Dunklin County, supra, 281 S.W.2d at 617 (7); Case v. Arky, Mo.App., 253 S.W. 484 (2)] stating the general rule that one seeking to set aside a default judgment must show that his failure to appear was not due to negligence and that he has a meritorious cause of action or defense, as the case may be. If a showing of the same requirements is prerequisite to vacation of a judgment under Rule 75.01 (another question upon which it is unnecessary for us to write or rule), the record in the instant case would impel the same conclusion. For plaintiff’s brief does not seriously dispute the sufficiency of defendant’s (Western’s) verified motion to set aside (treated as Fisher’s affidavit of the facts therein averred), to make a sufficient showing that defendant had a meritorious defense. And, as already indicated, we are unwilling to join with plaintiff’s counsel in branding Western’s inaction in the damage suit prior to the taking of the default judgment as negligence, in view of the assurance of defense which the trial court necessarily found to have been given by defendant’s personal counsel, the failure of said counsel to notify Western of their withdrawal and the setting for the taking of a default judgment, and Western’s early institution of the declaratory judgment action for the trial of which both plaintiff and Western had made written requests of the court within a few days prior to entry of the default judgment in the damage suit.

In closing, we are moved to comment that this opinion reflects not only the settled views of the present three judges of this court but also the considered conclusion as well as some of the distinctive language of our recently-departed brother, the Honorable Justin Ruark, who was engaged in the preparation of an opinion in this case at the time of his passing.

The order of May 27, 1965, setting aside the default' judgment of April 30, 1965, in the sum of $25,000 is approved, and the final judgment of December 15, 1965, in the sum of $22,500 is affirmed.

STONE, P. J., and HOGAN and TITUS, JJ., concur.

      . All statutory references herein are to RSMo 1959, V.A.M.S.; and all references to rules are to the Supreme Court Rules of Civil Procedure, V.A.M.R.

      . In an affidavit by Thomas Strong, one of plaintiff’s attorneys, dated May 24, 1965, it was stated that the trial judge scheduled and held a pre-trial conference at 4 P.M. on April 21, 1965.

      . Rule 83.03; Donati v. Gualdoni, 358 Mo. 667, 216 S.W.2d 519, 520(2); Lieffring v. Birt, 356 Mo. 1092, 204 S.W.2d 935, 936(1); Whealen v. St. Louis Soft Ball Ass’n, 356 Mo. 622, 202 S.W.2d 891, 893(3); Lange v. Baker, Mo.App., 377 S.W.2d 5, 7.

      . “Any person having an unliquidated claim for damages against a tortfeasor, on account of bodily injuries or death, may enter into a contract with such tort-feasor or any insurer in his behalf or both, whereby, in consideration of the payment of a specified amount, the person asserting the claim agrees that in the event of a judgment against the tort-feasor, neither he nor any person . . . claiming by or through him will levy execution, by garnishment or as otherwise provided by law, except against the specific assets listed in the contract and except against any insurer which insures the legal liability of the tortfeasor for such damage . . ..”

      . Although this distinction is not of significance here, strictly speaking the final judgment was not a true default judgment in that the case then was pending upon the issues joined by plaintiff’s petition (amended as to the ad damnum) and defendant’s answer filed on June 9, 1965, but rather was a judgment entered upon defendant’s default in appearance when the case was called for trial. J. G. Jackson Associates v. Mosley, Mo.App., 308 S.W.2d 774, 777(3); Brooks v. McCray, Mo.App., 145 S.W.2d 985, 987(1); National City Bank of St. Louis v. Pattiz, Mo.App., 26 S.W.2d 815, 816(1); Munroe v. Dougherty, 196 Mo.App. 124, 190 S.W. 1022, 1024(1).

      . See Savings Trust Co. of St. Louis v. Skain, 345 Mo. 46, 131 S.W.2d 566, 573 (13); State ex rel. Murphy v. Aronson, Mo.App., 330 S.W.2d 140; Gosnell v. Gosnell, Mo.App., 329 S.W.2d 230, 235 (10); In re Henry County Mut. Burial Ass’n, 229 Mo.App. 300, 77 S.W.2d 124, 126(6, 7); Cherry v. Cherry, 225 Mo.App. 998, 35 S.W.2d 659, 661(8). Consult also Ewart v. Peniston, 233 Mo. 695, 136 S.W. 422; Reid v, Moulton, Mo., 210 S.W. 34; Vaught v. Hez Brown Mortgage Co., Mo.App., 289 S.W. 655, 657 (7).

      . Wooten v. Friedberg, 255 Mo. 756, 198 S.W.2d 1, 5(1); Aull v. St. Louis Trust Co., 149 Mo. 1, 50 S.W. 289, 292; Dietrich v. Dietrich, Mo.App., 28 S.W.2d 418, 419. See Faulkner v. F. Bierman & Sons Metal & Rubber Co., Mo. App., 294 S.W. 1019, 1020(2); Ekonomou v. Greek Orthodox Church St. Nicho las, Mo.App., 280 S.W. 57, 58(1); People’s Bank of Holcomb v. Bullock, 216 Mo.App. 492, 270 S.W. 119, 120(2); Bruner v. Ingersoll-Rand Drill Co., Mo.App., 233 S.W. 256, 258(1); Dower v. Conrad, 207 Mo.App. 176, 232 S.W. 174, 175(1).

        . Rule 75.01; Harrison v. Weisbrod, Mo. App., 358 S.W.2d 277, 282(4); Romig v. Romig, Mo.App., 360 S.W.2d 737, 738 (1); Long v. Stilwell Homes, Inc., 333 S.W.2d 103, 105; Mid-States Equipment Corp. v. Hobart Welders Sales & Service, Mo.App., 233 S.W.2d 757, 758(3).

      . Harrison, supra note 8, 358 S.W.2d at 282; Long, supra note 8, 333 S.W.2d at 105-106; Mid-States Equipment Corp., supra note 8, 233 S.W.2d at 758. See State ex rel. State Highway Com’n v. Rascher, 350 Mo. 1138, 169 S.W.2d 941(1).

      . Plaintiff’s counsel point to our statement in Willis v. Willis, Mo.App., 274 S.W.2d 621, 625(4), that “a judgment validly rendered following a trial upon the issues cannot be vacated except upon ‘some legal ground’”; but, eschewing (there and here) any attempt to define the terms “some legal ground,” by the quoted language we intended (as the next •paragraph of the opinion indicated) no more than emphasis of “the idea that a judgment should not be set aside arbitrarily, capriciously or without good cause . . . .”

      . Ladd v. Stevenson, 112 N.Y. 325, 19 N.E. 842, 844(2); Bardach v. Mayfair-Flushing Corp., 49 Misc.2d 380, 267 N.Y.S.2d 609, 612(2); In re Board of Directors of Automatic Chain Co., 134 App.Div. 863, 119 N.Y.S. 379, 381(1), affirmed 198 N.Y. 618, 92 N.E. 1078; White v. Central Mut. Ins. Co., 150 Kan. 47, 91 P.2d 1(1); Guenther v. Funk, 67 N.D. 543, 274 N.W. 839, 843, 112 A.L.R. 428; Dimick v. Deringer, 32 Cal. 488, 491; 49 C.J.S. Judgments § 293b, 1. c. 541.

      . Jakobi v. Gorman, 2 Misc. 190, 21 N.Y.S. 762, 763(1); Manaban v. Petroleum Producing & Refining Co., 198 App.Div. 192, 189 N.Y.S. 127, 130; Aetna Insurance Co. v. Aldrich, 38 Wis. 107, 112-113; 1 Freeman on Judgments (5th Ed.), § 260, 1. c. 524; 49 C.J.S. Judgments § 293b, 1. c. 541.

      . Mangelsdorf v. Pennsylvania Fire Ins. Co., 224 Mo.App. 265, 26 S.W.2d 818, 822 (7); Kansas City, M. & B. R. Co. v. Southern Railway News Co., 151 Mo. 373, 385, 52 S.W. 205, 207, 45 L.R.A. 380; 29 Am.Jur., Insurance, § 3, p. 433; 44 C.J.S. Insurance § 1, p. 471. See Breeden v. Frankfort Marine, Acc. & Plate Glass Ins. Co., 220 Mo. 327, 360, 119 S.W. 576, 584; Binswanger v. Employers’ Liability Assur. Corp., 224 Mo.App. 1025, 28 S.W.2d 448; Standard Life & Acc. Ins. Co. v. Bambrick Bros. Const. Co., 163 Mo.App. 504, 143 S.W. 845, 848 (1).

      . V.A.M.S. § 379.200; Finkle v. Western Automobile Ins. Co., 224 Mo.App. 285, 26 S.W.2d 843, 849(10, 11); Pyle v. Bituminous Casualty Corp., 42 Tenn.App. 145, 299 S.W.2d 665, 669(1); Jertson v. Hartley, 342 Mass. 597, 174 N.E.2d 663, 667 (7); Miller v. United States Fid. & Cas. Co., 291 Mass. 445, 197 N.E. 75, 77 (8, 9); Lamb v. Belt Casualty Co., 3 Cal.App.2d 624, 40 P.2d 311, 314(4, 5); 8 Appleman, Insurance Law and Practice, § 4860, p. 289. See Washington Gaslight Co. v. District of Columbia, 161 U.S. 316, 329-330, 16 S.Ct. 564, 40 L.Ed. 712, 719(4); United Pacific Ins. Co. v. Meyer, C.A.9, 305 F.2d 107, 117 (6); B. Roth Tool Co. v. New Amsterdam Cas. Co., C.A.8, 161 F. 709, 712; Listerman v. Day & Night Plumbing & Heating Service, Inc., Mo.App., 384 S.W.2d 111, 119(8), and cases collected in note 5.

      . Although, as between plaintiff and Western, the latter could have asserted any defense which Western might have asserted as a defense in an action against it by defendant-insured. Meyers v. Smith, Mo., 375 S.W.2d 9, 13(2, 3); Adams v. Manchester Ins. & Ind. Co., Mo.App., 385 S.W.2d 359, 363(3); Donlon v. American Motorists Ins. Co., Mo.App., 147 S.W.2d 176, 178(2); 8 Appleman, Insurance Law and Practice, § 4811, p. 164; Id., § 4813, p.179; Id., § 4814, p. 183.

      . Nothing in the record indicates what, if any, disposition of the declaratory judgment action has been made.

      . Williams v. Barr, Mo.App., 61 S.W.2d 420, 421(2); Case v. Arky, Mo.App., 253 S.W. 484(1); Munroe v. Dougherty, 196 Mo.App. 124, 190 S.W. 1022, 1024(3).

      . Crown Drug Co. v. Raymond, Mo.App., 51 S.W.2d 215, 216; Karst v. Chicago Fraternal Life Ass’n, Mo.App., 22 S.W.2d 178, 181; Perkins v. Travis, Mo.App., 194 S.W. 730, 731. See Whitledge v. Anderson Air Activities, Mo., 276 S.W.2d 114, 116; Levee Dist. No. 4 of Dunklin County v. Small, Mo.App., 281 S.W.2d 614, 618.

      . Whitledge, supra note 18, 276 S.W.2d at 116; Levee Dist. No. 4 of Dunklin County, supra note 18, 281 S.W.2d at 618; Hartle v. Hartle, Mo.App., 184 S.W.2d 786, 788(1); Anspach v. Jansen, 229 Mo.App. 321, 78 S.W.2d 137, 139 (4); Muth Realty Co. v. Timmerberg, 178 Mo.App. 654, 161 S.W. 589, 591(4); Armstrong v. Elriek, 177 Mo.App. 640, 160 S.W. 1019, 1022(3); Parks v. Coyne, 156 Mo.App. 379, 137 S.W. 335, 340-341 (8).

      . Tucker v. St. Louis Life Ins. Co., 63 Mo. 588, 593; Savings Finance Corp. v. Blair, Mo.App., 280 S.W.2d 675, 678; Hartle, supra note 19, 184 S.W.2d at 788; Crown Drug Co., supra note 18, 51 S.W.2d at 216; Karst, supra note 18, 22 S.W.2d at 181; Hall v. McConey, 152 Mo.App. 1, 132 S.W. 618, 621.


source: Caselaw Access Project

author: TOWNSEND, Commissioner.

license: Public Domain

text:
    STATE of Missouri ex rel. Antoine SCHOENBACHER and Karl Ederer, Relators, v. Honorable John J. KELLY, Jr., Judge of Division No. 7, Circuit Court, St. Louis County, Respondent.
    No. 32283.
    St. Louis Court of Appeals, Missouri.
    Oct. 18, 1966.
    Motion for Rehearing or to Transfer to Supreme Court Denied Nov. 15, 1966.

      Victor Packman, Abraham Davis, Harvey I. Feldman, St. Louis, for relators.
    Husch, Eppenberger, Donohue, Elson & Cornfeld, James W. Singer III, St. Louis, for respondent.
   TOWNSEND, Commissioner.

Original proceeding in prohibition.

The procedural history discloses the following sequence of events leading up to the application for the writ :

On May 4, 1965, Hans Coiffures International, Inc. filed its petition in the Circuit Court of St. Louis County, seeking an injunction against Schoenbacher and Ederer (relators herein) to prevent them from violating the terms of separate alleged employment contracts and in a second count to enjoin them from pursuing an alleged scheme and conspiracy to deprive plaintiff of its business, customers, trade secrets, good will, and trade name. In each count plaintiff prayed for a restraining order until such time as its prayer for temporary injunction could be heard. On the same day the respondent judge entered his order to show cause, returnable May 13, 1965, why a temporary injunction should not be granted, and in the same order restrained the defendants from pursuing certain occupations in the City or County of St. Louis until the further orders of the Court. The order recited that defendants had not been notified of the application for injunction; bond in the amount specified by the Court, $2000, was furnished. On the following day the defendants were served with the order.

Two days thereafter defendants filed their separate motions to dismiss the restraining order, which on May 8 were overruled; the restraining order was modified as to defendant Ederer. On May 11, 1965, plaintiff filed its petition for contempt, supplemented by affidavits of two persons reciting violations of the restraining order by defendants. Contempt citation was issued the same day, returnable May 13, 1965; returns to the citation were made on that day. Respondent ordered plaintiff to furnish an additional bond of $2000 by June 1, 1965.

On May 13, 1965, plaintiff announced ready to proceed with the hearing for a temporary injunction but defendants requested a continuance which was granted. On the same day respondent entered the following order :

“On oral motion of defendants order to show cause continued to 9:30 a. m., Monday, June 1, 1965; Return to Order to Show Cause to be filed prior to June 1, 1965, and cause to be tried on the merits on said date. Cause advanced to the top of the trial docket of 1 June, 1965, and peremptorily set that date.”

Plaintiff filed a motion on May 24, 1965, to hold defendants in contempt for failure to appear to have their depositions taken.

Petition for Writ of Prohibition" was filed in this Court on May 27, 1965, and the preliminary writ issued on June 25, 1965.

The petition in the suit for injunction sets forth that plaintiff is engaged in the business of operating and conducting a beauty salon and in the business of making wigs and toupees in St. Louis County under the trade name of “The Duke & Duchess Wigs and Toupees”. It alleges the existence of individual employment contracts, each for a period of four years, with each of the defendants, Ederer as a hair stylist and Schoenbacher as a hair stylist, barber and wig and toupee maker. Each contract provided that upon the termination for any cause of the relative employment defendant would not engage in the same or similar line of business as conducted by plaintiff or work for any individual, firm or corporation engaged in such business within the City or County of St. Louis. It is further alleged that after voluntarily terminating their employment with plaintiff defendants commenced working for themselves as wig makers in St. Louis County under the name of “Lord and Lady, Ltd., Wig Masters”. In the second count plaintiff charges that defendants voluntarily terminated their employment pursuant to a scheme and conspiracy wrongfully, fraudulently and illegally to deprive plaintiff of its business, customers, trade secrets, good will, trade name, and employees, and to acquire all of the same for themselves by doing business in St. Louis County as wig makers. This count also charges that the defendants are using trade secrets and information imparted to them by plaintiff in carrying on plaintiff’s business, by using customer lists illegally taken from plaintiff in order to acquire plaintiff’s customers, or attempting to persuade plaintiff’s employees to cease working for plaintiff, and are using the trade name of “Lord and Lady, Ltd., Wig Masters” deceitfully to cause the public to believe that when doing business with them the public is actually doing business with plaintiff. Copy of the contract with defendant Schoenbacher recites that it is an agreement between him and Duke & Duchess Wigs and Toupees, Inc., a Missouri corporation. Each such contract contains a provision for liquidated damages of $50.00 per day in case of breach by an employee and in addition provides that the employer shall at its option have the additional right of applying for an injunction in restraint of any such violation. There is a variation between the two contracts as to the compensation of the respective employees and as to other contractual details.

Relators’ attack upon respondent’s jurisdiction — or lack thereof, — may be adequately summarized under three heads:

(1) That the restraining order, issued without prior notice, amounted to a denial of due process, was violative of constitutional safeguards and hence was invalid;

(2) That the restrictive covenants of the employment contracts are made unlawful and void by Section 416.040, V.A.M.S.;

(3) That the petition, upon the basis of which the restraining order was issued, did not disclose a situation where, according to the usages of equity, the plaintiff was entitled to relief.

Additionally, as a contention personal to defendant Schoenbacher, it is maintained that the suit against that defendant had no contractual basis since, it is asserted, the petition shows that plaintiff was not a party to Schoenbacher’s employment contract. Clearly, if there was no contract between plaintiff and Schoenbacher, respondent had no jurisdiction over the subject-matter of Schoenbacher under Count I. Consideration is given first to the contention thus made.

RELATOR SCHOENBACHER

Under Count I of the petition for an injunction it is alleged that the plaintiff operates its business under the trade name of “The Duke & Duchess Wigs and Toupees” and that it entered into the alleged contract of employment with Schoenbacher on or about July 22, 1964, which contract is attached to the petition as Exhibit B. The parties to Exhibit B are described as Duke & Duchess Wigs and Toupees, Inc. and Antoine Schoenbacher. Exhibit B is signed “Duke & Duchess Wigs and Toupees, Inc., by Hans Wiemann”, and by Schoenbacher. The petition for injunction states further that Schoenbacher worked for plaintiff as a wig maker until on or about April 28, 1965. The question then plainly is whether or not plaintiff has a contract with Schoen-bacher which can be the basis of the suit under Count I.

The petition of plaintiff declares that Exhibit B is a contract between itself and the named defendant. We are then presented with the question of whether the obviously faulty draftsmanship of Exhibit B precludes the plaintiff from showing that the contract was made with itself under a name assumed by the plaintiff for the purposes of dealing with Schoenbacher. Since the petition shows that the plaintiff was carrying on business under the name of Duke & Duchess Wigs and Toupees, and since the petition alleges that Exhibit B is a contract between itself and Schoenbacher, we think it is open to Hans Coiffures International, Inc. to show that for the purpose of entering into contractual relations with Schoenbacher it adopted the name of Duke & Duchess Wigs and Toupees, Inc. This conclusion is fortified by the fact that under the contract found in Exhibit B defendant Schoenbacher worked for Hans Coiffures International, Inc. for several months before quitting the latter’s employment. Additionally, the contract found in Exhibit B designates the employer’s beauty salon, 1012-1016 South Brentwood Boulevard, St. Louis County, as the place where Schoen-bacher’s services were to be rendered; that location is otherwise identified as plaintiff’s place of business. “ * * * a person may adopt or assume a different name from his true one, and may even carry on business and make contracts under his fictitious name * * * Sims v. Missouri State Life Ins. Co., 223 Mo.App. 1150, 23 S.W.2d 1075, 1078. It is well established that a person can bind himself in contract by another than his true name. “The intent controls” (Guess v. Russell Bros. Clothing Co., Mo.App., 231 S.W. 1015, 1016) whether the person in question is plaintiff, De Maria & Janssen v. Baum, 227 Mo.App. 212, 52 S.W.2d 418, or is defendant, Guess supra. Where that person is plaintiff, his failure to comply with the requirements of the Fictitious Name statute does not result in a condemnation of outlawry. Ditzell v. Shoecraft, 219 Mo.App. 436, 274 S.W. 880.

While it would be anomalous to find that one corporation had assumed the name of a non-existent corporation for a particular contractual purpose it does not pass the limits of credibility where mistake in drafting is written large across the face of the whole matter.

It is to be noted that under the objection to jurisdiction thus taken by relators nothing is said in the petition for prohibition and the suggestions relating thereto, denying the possibility of jurisdiction over Schoenbacher under Count II of the petition for injunction.

DUE PROCESS

Although relators’ brief under Points and Authorities intermingles several variant types of complaint under a single head, analysis of their argument as a whole necessitates the statement of their objections in the manner previously stated.

Relators present here the constitutional contention that respondent’s issuance of the restraining order was not in accord with due process.

It is much too late in the day to maintain that the issuance of a restraining order without notice violates per se the requirement of due process. The historical evidence is to the contrary. Long before the time of the adoption of the Fourteenth Amendment it was an established practice of chancery to grant a temporary injunction or a restraint in the nature of an injunction without notice. We are informed by Kerr on Injunctions (Boston, 1871, reprint of earlier English edition):

“Instead of issuing the writ of injunction in the first instance the court will often grant an interim order in the nature of an injunction, by which the defendant is restrained until after a particular day named, liberty being given to the plaintiff to serve notice of motion for an injunction for the day before such day. The usual practice is to extend the order over the whole of the next motion day, in order that the plaintiff may serve, by leave of the court, the defendant with notice of motion for an injunction for that day. * * * In many respects there is a convenience in proceeding by interim order instead of granting an injunction. * * * Interim orders are generally granted upon ex parte application, * * *. Where the application is ex parte it is necessary that the court should be informed of all material facts-The court does not, perhaps, upon an application for an interim order, require the same special mention of all particulars which it requires where the application is for an ex parte injunction, but it is the duty of the party who makes the application to bring all material facts before the notice of the court.” (Pages 620, 621.)

And it is stated in Hilliard, The Law of Injunctions (Philadelphia, 1865):

“ § 113. It is said, although the practice in this country [U.S.] is to grant an injunction, on the filing of the bill, without notice to the defendant, yet the complainant must use due diligence in prosecuting his suit afterwards, or the bill will be dismissed.” (P. 49-50.) (Emphasis ours.)

The treatises, older and newer, discuss at many points the practice of issuing an injunction without notice to the defendant, verifying and restating the ancient custom of the chancellors. E. g., see High on Receivers (4th ed.) §§ 3, 6. The antiquity of the practice is illustrated by the cases set out in the footnote.

That various cases express conditions upon which the particular chancellor chose to act in a particular case in no way detracts from the fact that the practice was established and that the propriety of the court’s action did not depend upon notice to the defendant. Where the chancellor expressed a condition upon which he would grant or deny an injunction he was simply exercising his discretion, dependent upon his weighing of the equities in the case. All this was strictly in accord with the well known principle that equity acts at discretion, individualizing each particular case, in determining whether or not equity should intervene in the situation. The statement of the condition could not result in an ossification of “equity law”. It still left the operations of the chancellors within the referential framework of “Equity acts at discretion.” All this had no relation to the question of whether the procedure had been correct and hence could have had no impact on any problem of due process.

The issuance of a mere restraining order does not violate the constitutional principle that a defendant may not be condemned without a hearing. The temporary restraint imposed' does not purport to pass upon the merits of a controversy, is dispositive of no issue and hence does not amount to a condemnation as that term is used in the statement of the principle. The sole purpose of the restraining order is to preserve the status quo until the hearing upon the order to show cause; in this respect we emphasize that the order here was only an ephemeral stage in setting the scene for a full hearing on the prayer for a temporary injunction. The order to show cause was made returnable on the ninth day after the date of the restraining order, the necessary effect of which was to prohibit relators from pursuing the stated occupations. Relators were protected by the bond invariably required in such situations. The amount of the bond was later doubled. In all this we detect no lack of due process.

Where a statute conditions the issuance of an injunction upon notice to the defendant, as has been the case in some states, then necessarily local practice must conform to the terms of the statute. Cases holding that the issuance of an injunction was improper where such a statutory requirement was not satisfied are in no way relevant to the question of constitutional due process. In this connection it is to be noted that the Missouri procedural statutes do not require that notice shall be given to defendant before issuing a temporary injunction. Sec. 526.050, V.A.M.S., except where the injunction is one to stay some proceeding. Section 526.100. Section 526.-140 relates to proceedings where “no notice of such application is required by this chapter” and provides that if “the court * * * shall deem it proper that the defendant * * * should be heard before granting the injunction”, the court may require cause to be shown at a specified time and “may, in the meantime, restrain the defendant, or make such other order as the case may require.” Respondent’s action followed the terms of this section in that he deemed it “proper” that defendant should be heard before granting the injunction and so ordered; at the same time he exercised the authority given by the same section to restrain the defendants “in the meantime”. But relators contend that no statute can delimit the need for notice and an opportunity to be heard if constitutional safeguards regarding due process are respected. This contention is sufficiently considered by what has been heretofore said about the ancient practices in equity. We deem Section 526.140 and respondent’s conduct thereunder to be in accord with historically established concepts of fair and reasonable proceedings and hence of due process.

APPLICABILITY OF SECTION 416.040, V.A.M.S.

Do the contracts, made a part of the petition, show on their face that they are void by reason of Section 416.040 V.A.M.S.? We set out here those portions of the section quoted by the relators:

“All * * * contracts, agreements * * * or understandings made or entered into between two or more persons, designed or made with a view to lessen, or which tend to lessen, lawful trade, or full and free competition in the * * * manufacture or sale in this state of any product, commodity or article, or thing bought and sold, of any class or kind whatsoever * * * are hereby declared to be against public policy, unlawful and void; * *

Relators would have us believe that the applicability of the section is so clear that it determines conclusively the invalidity of the contracts and “leaves no need now for weighing provisions of such contracts on scales of equity.” By a curt answer and by citing to us cases involving neither the interpretation nor the application of the section, respondent in effect ignores the issue.

A thorough examination of the annotations to this statute has revealed no •case in which there was presented the ■question of the application of the section to a personal service contract simplex. We do not believe that the language of the section is so clear and unambiguous as to give compelling evidence of legislative intent to "bring contracts for purely personal services within the doom of the statute. The latter portion of the quoted section refers to “full and free competition in the * * * manufacture or sale in this state of any product, commodity or article” and admits •of little doubt; however the earlier portion, “made * * * with a view to lessen, or which tend to lessen, lawful trade” embodies concepts of uncertain meaning when simple employment contracts are brought -under surveillance. We attempt no interpretation. At the most we say that the applicability of the section is a matter of uncertainty and doubt. Relators cannot determine its applicability by their mere ipse dixit. In that posture we do not regard prohibition as an appropriate vehicle by which to impose on this Court the function of making an authoritative interpretation. We take the section as we find it — its meaning in doubt. Accordingly, relators have failed, on this point, to sustain the burden resting on them to show respondent’s lack of jurisdiction. State ex rel. Schlueter Mfg. Co. v. Beck, 337 Mo. 839, 85 S.W.2d 1026, 1033; State ex rel. State Highway Commission v. Curtis, 365 Mo. 447, 283 S.W.2d 458, 463.

USAGES OF EQUITY

(a) Irreparable Damage. Relators regard the pleading of the probability of irreparable damage or some other type of immediate necessity as a prerequisite to the issuance of a restraining order.

It may be noted at the outset that the operative statute imposes no such requirement. Section 526.030, V.A.M.S. provides that, “The remedy by writ of injunction * * * shall exist in all cases * * * to prevent the doing of any legal wrong whatever, whenever in the opinion of the court an adequate remedy cannot be afforded by an action for damages.” Plainly this section places upon the availability of the remedy none of the conditions or qualifications previously existing in equity, save only the one relating to the inadequacy of the legal remedy. However it would be impossible to ignore the gloss long ago put upon the section by appellate courts, Neiser v. Thomas, 99 Mo. 224, 12 S.W. 725; Boeckler v. Missouri Pac. R. Co., 10 Mo.App. 448, and the subsequent adherence thereto. State ex rel. Kenamore v. Wood, 155 Mo. 425, 56 S.W. 474; State ex rel. Office, etc. v. Horner, 238 Mo.App. 787, 187 S.W.2d 976, 978. Accordingly we act upon the assumption that this statute did not enlarge the equity jurisdiction (Neiser v. Thomas, supra), i. e., did not remove the previously generally accepted conditions upon the exercise of the injunctive power.

We proceed to consider the necessity of pleading irreparable damage. In the petition for injunction the plaintiff alleged that the conduct of defendants would, if unrestrained, result in irreparable damage to it. It was once said by the Supreme Court that such an allegation (prophecy) is not in and of itself sufficient to invoke the interference of the court, State ex rel. Ken-amore v. Wood, supra. However a showing of the probability of irreparable damage or of the need of immediate action to protect the lawful interests of the plaintiff — if such be requisite to action by the court — may well be had by pleading the facts which cause the plaintiff to take the initiative. While such recitals of facts may be traversed, yet in the nature of things they are taken as true upon an ex parte application for a restraining order; the court’s opinion as to the need for immediate action must rest upon such allegations. Therefore under the Kenamore case the propriety of the temporary restraint must rest upon an assumption as to their truth. The court must first determine whether the allegations make out prima facie, good cause for the court’s intervention. We think that the plaintiff in the petition for an injunction here did allege facts which taken as true, might well cause respondent to find that there was need for immediate action to protect the legal rights of plaintiff. We agree that the petition presented “an extremely aggravated and indeed unconscionable situation.” Therefore we find that not only did the plaintiff plead irreparable damage in a general way but plaintiff alleged such specific facts that any requirement of a showing of the probability of irreparable damage was satisfied.

(b) Adequacy of Legal Remedy. Each of the employment contracts contains a provision for liquidated damages and in addition purports to confer upon the employer the privilege of applying for an injunction to restrain the employee from a continuing breach of contract. Relators maintain that because of the provision for liquidated damages the petition shows that plaintiff had an adequate remedy at law and so plaintiff could not be entitled to in-junctive relief. We cannot agree that the mere fixing of liquidated damages necessarily demonstrates conclusively the complete sufficiency of a resort to the legal remedy for redress of a legal wrong. Wills v. Forester, 140 Mo.App. 321, 124 S.W. 1090. The fact that a contract contains a provision for liquidated damages does not make the contract one for performance in the alternative, i. e., — to give the relative party the election either to perform the principal objective of the contract or to make a monetary payment. Wills v. Forester, supra. The very use of the word “damages” in the liquidated damages clause indicates that a sanction will be imposed upon a defendant for a breach of his obligation. Stein v. Bruce, Mo.App., 366 S.W.2d 732. A breach cannot be a performance. Unless the context clearly shows a different intention, such a clause cannot give him an election between alternative methods of full performance; on the contrary it specifies a method of chastening him for not performing his promise. High on Injunctions, 4th ed., § 1175. In essence a valid provision for liquidated damages merely relieves the non-breaching party of the necessity of proving his actual damages, if he chooses to sue for damages, or otherwise assert his right to damages; that is its function and it has no relation to the broad question of whether or not a monetary recovery is a measure sufficient to relieve fully the complainant from the distress he suffers by reason of defendant’s wrong.

Plaintiff has pleaded generally lack of an adequate remedy at law. The allegations of specific facts found in the petition show, prima facie, that "an action for damages would not afford the plaintiff an adequate remedy.

(c) Illegal and Oppressive Contract. The employment contracts are denominated oppressive and unreasonable by relators and therefore not a subject for equitable relief.

Relators’ argument on this point is of course based on the fact that one of the promises of each relator is that, within the City and County of St. Louis, he would not engage, upon the termination of his employment, in a line of business the same or similar to that carried on by the plaintiff. Since the promise contains no stated limitation upon the period of the restriction of the employee’s liberty of action, relators maintain that the absence of such a limitation renders the contract illegal and has “destroyed the enforceability of the contract.”

This argument on the part of the rela-tors necessitates the contention that, whenever a contract includes an engagement which'restrains the promisor’s freedom of action for an unlimited period of time, the restraint is of such a malignant character that it diffuses instantaneously throughout the contract and mortifies the whole. No Missouri authority which justifies such a sweeping conclusion has been cited to us.

Whatever was said in Mallinckrodt Chemical Works v. Nemnich, 83 Mo.App. 6 (affirmed 169 Mo. 388, 69 S.W. 355) regarding the effect of the absence of a time limitation in the restrictive covenant, was plain dictum as the covenant in that case contained a definite time limitation—five years. The same may be said of Reddi-Wip, Inc. v. Lemay. Valve Company, Mo.App., 354 S.W.2d 913, where the Court found that there was a definite time limitation contained in the restrictive covenant.

That feature which was held to make a restrictive covenant invalid in Prentice v. Rowe, Mo.App., 324 S.W.2d 457, and Prentice v. Williams, Mo.App., 324 S.W.2d 466, was not the absence of a time limitation but the fact that the restriction was wholly unlimited as to area. The covenant contained a time limitation of two years. In the present context, the most that can be said of the latter two cases is that the Court said that in order for a restraint to be reasonable it must “usually” be qualified as to time and area, a generalized type of statement found in many other cases. Obviously the Court did not have before it and did not purport to pass upon the question of the effect of an absence of time limitation alone. By italicization and by express words the Court emphasized that it based its holdings upon the absence of any limitation upon the area within which the restraint was to operate.

Accordingly, we have before us no Missouri ruling that a contractual restraint of the kind here in question was invalid because of the absence of a time limitation. In a wide ranging and intensive survey of such a question, the editors of A.L.R. have published a lengthy annotation from which they arrive at the conclusion:

“The overwhelming majority of the cases lend support to the rule that the mere fact, standing alone, that a restrictive covenant not to compete ancillary to a contract of employment contains no time limit or is expressly made unlimited as to time does not render the restriction ipso facto unenforceable.” 41 A.L.R.2d 41.

The cases elsewhere, collected and classified by the annotators, show that the effect of the absence of a time limitation depends in each case upon the reasonableness of the restriction, a matter to be considered hereinafter.

In a related area Missouri courts have held that the restrictive covenant is not made void or unenforceable by the lack of a time limitation. Gordon v. Mansfield, 84 Mo.App. 367; Kreger Glass Co. v. Kreger, Mo.App., 49 S.W.2d 260. While these were cases of the sale of a professional practice and of a business we find applied the criterion of the reasonableness of the restraint. It is stated in the Gordon case that “the test to be applied in determining whether the restraint is reasonable is whether it is such only as affords a fair protection to the interest of the party in favor of whom it is given and not so large as to interfere with the interest of the public.” In accordance with that principle the Court in the Kreger Glass case limited the injunction to the period during which the plaintiff remained in business although the contract contained no time limitation.

In harmony with the approach taken in the Kreger Glass case we find that in employment contract cases some courts in the exercise of equity’s discretionary power have limited the period of an injunction to such duration as is necessary to give an employer fair protection of his interest although the restrictive covenant contained no time limitation. Lewis v. Krueger, Hutchison and Overton Clinic, 153 Tex. 363, 269 S.W.2d 798. In the latter case the court said: “Merely because a limit has not been fixed for the duration of the restraint, the agreement will not be struck down but will be enforceable for such period of time as would appear to be reasonable under the circumstances.” Similarly, where the court found that a fixed period of restraint was unreasonable, it enjoined the employee for such portion of that period as it regarded as necessary to the protection of the employer. John Roane, Inc. v. Tweed, 33 Del.Ch. 4, 89 A.2d 548, 41 A.L.R. 2d 1. The approach of the respective courts in the last two cases cited has the approval of Corbin on Contracts, § 1394, where it is said: “As in the case of contracts restraining the seller of a business with its good will, the fact that the restriction on an employee goes too far to be valid as a whole does not prevent a Court from enforcing it in part insofar as it is reasonable and not oppressive. The injunction may be made operative only as to reasonable space and time * * *.”

The basic and generally accepted rule is that a contractual restraint upon a promisor’s freedom of action is unenforceable if the restraint is unreasonable and, of course, conversely, it is valid if the restraint is reasonable. Approaching the problem first from the negative side the Restatement of Contracts states that the restraint is unreasonable, if it

“(e) is based on a promise to refrain from competition and is not ancillary * * to an existing employment or contract of employment.” (Sec. 515.) Our presently considered contracts do not conform to this part of the definition of unreasonableness. On the affirmative side, Section 516 states that the following bargain does not impose an unreasonable restraint:

“(f) A bargain by an assistant, servant or agent not to compete with his employer, or principal, during the term of his employment or agency, or thereafter, within such territory and during such time as may be reasonably necessary for the protection of the employer or principal, without imposing undue hardship on the employee or agent.”

Considering only the precise wording of the latter section it leaves unclear the exact effect of failing to limit the restraint either in time or space. It does not state that, absent such limitation, the restraint is unreasonable. In this situation we advert to the general rule that the question of the reasonableness of a restraint is to be determined according to the facts of the particular case, Renwood Food Products v. Schaefer, 240 Mo.App. 939, 223 S.W.2d 144, and hence requires a thorough consideration of all surrounding circumstances including the subject-matter of the contract, the purpose to be served, the situation of the parties, the extent of the restraint and the specialization of the business and of the employment. Obviously such surrounding circumstances can be properly investigated only upon the production of evidence. Hence where the invalidity of the promisor’s engagement is not apparent upon the face of it, it is nothing more than a truism to say that the reasonableness of a restrictive covenant cannot be determined by a mere inspection of a pleading. Such a determination requires the functioning of a trial court, acting upon the basis of the evidence produced before it. It follows that relators’ raising here of the question of the validity of the restrictive covenant found in paragraph 4(b) is premature and accordingly furnishes no basis for a proceeding in prohibition.

The commitment of the relators not to engage in the same or a similar line of business upon the termination of their employment is found in paragraph 4(b) of their respective contracts. By paragraph 4(a) of each contract the respective employee agrees “To devote his entire time, skill, labor and attention, to said employment during the terms of this employment * * Plainly, by the latter paragraph the employee engages himself to work exclusively for the plaintiff for the period of the contract. This paragraph is separable in its entirety from paragraph 4(b). We now note another section of the Restatement of Contracts, § 518, relating to restrictive covenants:

“Where a promise in reasonable restraint of trade in a bargain has added to it a promise in unreasonable restraint, the former promise is enforceable unless the entire agreement is part of a plan to obtain a monopoly; but if full performance of a promise indivisible in terms, would involve unreasonable restraint, the promise is illegal and is not enforceable even for so much of the performance as would be a reasonable restraint.”

Clearly a contract for the exclusive services of an employee in a named occupation for a named period is not an unreasonable fettering of- the employee’s freedom of action. Paragraph 4(a) can stand by itself as a reasonable restriction upon relators and hence might well be enforceable even if paragraph 4(b) were found to be an unreasonable restraint, which, of course, we do not, by anything said herein, find to be the case. Whether or not it should be enforced by use of the injunctive process is a question which lies squarely within the power of the circuit court which could act intelligently only upon appropriate hearing and the development of the evidence as to the circumstances of the parties litigant. Accordingly we find that paragraph 4(a) by itself would afford an independent base — and possibly a sufficient base — for an injunction proceeding. While equity will not decree specific performance of a personal service contract it has the power to enjoin the performance of such service for anyone else.

We have considered in detail the points made under the last three heads — irreparable damage, adequacy of legal remedy and restrictive covenant — because the parties have engaged in extended argument concerning each of them. However upon a thorough consideration of each it appears that the relators by applying for the writ of prohibition are endeavoring to have the injunction case tried in this court upon the merits, insofar as the three named points are concerned. Their contentions are addressed entirely to the merits of the plaintiffs case and not to the power of the circuit court to hear a case involving an alleged breach of contract. Plainly the merits can be determined only upon the holding of an appropriate hearing at which the parties can submit evidence in support of their respective contentions. By applying here for the writ, relators would circumvent the principle that prohibition cannot be used as a substitute for demurrer, appeal or error. State ex rel. Massman Const. Co. v. Buzard, 346 Mo. 1162, 145 S.W.2d 355; State ex rel. Hog Haven Farms, Inc. v. Pearcy, 328 Mo. 560, 41 S.W.2d 403; State ex rel. Connors v. Shelton, 238 Mo. 281, 142 S.W. 417; State ex rel. Supreme Temple, etc. v. Cook, 234 Mo.App., 898, 136 S.W.2d 142; State ex rel. St. Louis Cooperage Co. v. Green, 92 S.W.2d 930. If a de fendant wishes to maintain that a petition does not state a cause of action, such an asserted defect is a matter addressed to the trial court by way of demurrer or the modern motion to dismiss, the overruling of which gives the losing party his right of appeal. It has been cogently stated that “Where it may be gleaned from the petition that the cause of action attempted to be stated belongs to that class of cases of which the circuit court has general jurisdiction, that court has jurisdiction to determine the sufficiency or insufficiency of the petition, and, if it should hold a bad petition good, or a good petition bad, such holding would be error which could be corrected by appeal or other appropriate remedy, but it furnishes no ground for prohibition.” State ex rel. Leake v. Harris, 334 Mo. 713, 67 S.W.2d 981, 982.

Much earlier the Supreme Court had expressed itself to the same effect:

“ * * * the question is one of jurisdiction, and not of pleading; for, if the court had jurisdiction over the subject-matter, it had the power to decide whether the pleadings were or were not properly drawn. * * * Given the jurisdiction, all else is a mere matter of error, to be corrected on appeal. * * * the mere failure of a petition to state a cause of action, * * * in no way affects the jurisdiction of the court.” Schubach v. McDonald, 179 Mo. 163, 78 S.W. 1020, 1023, 65 L.R.A. 136; State ex rel. McNamee v. Stobie, 194 Mo. 14, 92 S.W. 191, 198.

Confusion has been engendered in prohibition cases by the careless use of the term, Equity Jurisdiction, as if it were some kind of special jurisdiction separate and apart and distinct from the general jurisdiction of circuit courts. Equity Jurisdiction is a term which relates not to the power of a court to act but to the content of the alleged cause of action which the petition sets forth and the prayer for relief. Raising a question of “equity jurisdiction” simply states a problem of whether or not its allegations present the kind of case in which a court should exercise its power to grant the kind of relief historically afforded by the separate courts of equity. Its references are not to the general authority of the court of general jurisdiction but to the substantive question of whether enough is shown to move the court to grant the peculiar remedies of equity, according to well established principles. If it be said that a showing of probable irreparable damage from breach of contract is a requisite to equitable relief that requirement is no different in essence from the requirement in an action at law that consideration for a promise must be shown in the action for damages for breach of the promise. In each case the stated requirement is an essential condition to the granting of a judgment because each goes to the merits of the case presented. But neither requirement goes to the authority of the court to act. Neither is a jurisdictional fact. For equity courts the matter was succinctly stated by Mr. Justice Stone in DiGiovanni v. Camden Fire Insurance Ass’n., 296 U.S. 64, 69, 56 S.Ct. 1, 3, 80 L.Ed. 47: “Whether a suitor is entitled to equitable relief in the federal courts, other jurisdictional requirements being satisfied, is strictly not a question of jurisdiction in the sense of the power of a federal court to act. It is a question only of the merits; whether the case is one for the peculiar type of relief which a court of equity is competent to give”. (Our emphasis.)

It is clear that the objections to jurisdiction, stated by relators under the last three heads considered, all relate to the merits of plaintiff’s case- and do not properly challenge respondent’s jurisdiction. “The decision of issues arising on the merits is peculiarly within the jurisdiction and power of the inferior court. It may decide the issues erroneously if it will. To say that the inferior court has jurisdiction to decide an issue and has no jurisdiction to decide it erroneously is a paradox.” State ex rel. Henry v. Cracraft, 237 Mo.App. 194, 168 S.W.2d 953.

Relators’ complaint that the petition for an injunction was made upon information and belief lacks substance. See § 526.040, V.A.M.S., and Supreme Court Rule 92.01; State ex rel Allai v. Thatch, Judge, 361 Mo. 190, 234 S.W.2d 1, 11. Neither do we find that respondent’s power to act was neutralized by failure to conform to a practice rule of his own court. Section 526.140, V.A.M.S.; Supreme Court Rule 92.19; Wade v. Wade, Mo.App., 395 S.W.2d 515.

Writ of prohibition should be denied and preliminary rule quashed.

PER CURIAM.

The foregoing opinion by TOWNSEND, C., is adopted as the opinion of this .Court. Accordingly writ of prohibition is denied and preliminary rule quashed.

WOLFE, P. J., and ANDERSON and RUDDY, JJ., concur.

      . Pearce v. Crutchfield, 14 Yes.J. 206—Nov. 30, 1807
      “An Order was made just before the Vacation, that Mrs. Parmer should attend in Court on this day; restraining her in the meantime from all communication with a young man, of the age of eighteen; upon affidavits of an intended marriage between them. [After fruitless attempts to serve defendant] Lord Eldon granted an Injunction.”
      Dr. Martin and Lady Arabella Howard v. Nutkin et al., 2 Peere Wms. 266 (1724)
      “ * * * on motion Lord Chancellor Macclesfield granted an injunction to stay the ringing [of a church bell] until hearing.” [The cause came on for hearing before the Lords Commissioners Gilbert and Raymond “who decreed that the injunction should continue during the lives of the plaintiffs and the survivor of them”.]

      . In this context, preserving the status quo is taken to mean not merely freezing the situation as the court now finds it but to mean figuratively the restoration of the parties to “the last actual, peaceable, non-contested condition which preceded the pending controversy.” High on Injunctions, 4th ed., § 5a. Sometimes the preservation of the status quo involves an order in the nature of a mandatory injunction, a feature not present in the instant case.

      .It is not necessary here to wander through the forest of injunctive nomenclature — preliminary injunction, restraining order, temporary injunction, interim order, interlocutory injunction. No matter what the label, conduct of the addressee is restrained. As between restraining order and temporary injunction the affixing of one label or the other usually has significance only in determining the moment of its dissolution. See Perservance Common School District No. 90 v. Honey, Mo. App., 367 S.W.2d 243, where it is said: “ * * * a ‘temporary restraining order’ is an injunction.” (Page 247).

      . We are cited to Hovey v. Elliott, 167 U.S. 409, 17 S.Ct. 841, 42 L.Ed. 215. However in that case a defendant’s answer was stricken, his previously entered evidence was suppressed and decree against him was entered pro confesso— all because defendant was in contempt for failure to obey an interim order of the court. Held: “We rest our decision on the want of power in the courts of the District of Columbia” to render a decree pro confesso under such circumstances and such decree is not entitled to full faith and credit as against third parties. The relevance of this authority escapes us.

      . The corresponding Supreme Court rule is 92.02, V.A.M.R. and authorizes a restraining order as well as a temporary injunction.

      . The related Supreme Court rules are 92.03-92.07.

      .“The assignment that the temporary restraining order was issued without notice cannot be sustained. Respondents’ jurisdiction, in the sense of power to act, was not conditioned upon a showing of previous notice to relator Baumes.” State ex rel. and to Use of Baumes et al. v. Mason, 348 Mo. 436, 154 S.W.2d 67, 72.
      «* * * equity has never prescribed it [notice] as a condition precedent in all cases to the grant of a temporary injunction. * * * The jurisdiction of the circuit court of the case made by the petition was not dependent upon the fact of previous notice to the defendant of the motion for temporary injunction.” State ex rel. McMillan v. Woodside, 254 Mo. 580, 163 S.W. 845, 848. And see Ex parte Gounis, 304 Mo. 428, 263 S.W. 988, 991.

      . In Reddi-Wip, Inc. v. Lemay Valve Co., Mo.App., 354 S.W.2d 913, there is a suggestion of possible application of Section 416.040. In any event the contractual restraint there at issue related to the defendant’s manufacture and sale of a definite product. In the language of the court, the action was “one to enjoin the breach of a contract restricting the manufacture of an unpatented article.”

      . “ * * * there must be some special circumstances bringing the case under some recognized head of equity jurisdiction before it will wield the powerful writ of an injunction.” (at page 476)

      . But compare the language of the opinions in Summit City Creamery Co. v. Leach, Mo.App., 41 S.W.2d 191 and Thompson v. City of Malden, Mo.App., 118 S.W.2d 1059. It was said in Gordon v. Mansfield, 84 Mo.App. 367, that “In order to invoke the remedy by injunction, it is not necessary under the statute * ⅜ ⅜ for a plaintiff to allege and prove that the legal wrong threatened is irreparable.”

      . The comment to Restatement Section 515 states that “there is a territory between the two Sections [515 anti 516] of greater or less extent which is not covered by the rules stated in either section.” The comment continues, “Neither the period of time during which a restraint is to last, nor the extent of the territory that is to be included is conclusive but the length of time and even more the extent of space are important factors in the determination of the reasonableness of a restrictive agreement.”

      . Essex Specialty Co. v. Bueschel, 116 N.J.Eq. 337, 173 A. 595; Philadelphia Ball Club v. Lajoie, 202 Pa. 210, 51 A. 973, 58 L.R.A. 227; Savoy Record Co. v. Mercury Record Corp., D.C., 108 P. Supp. 957; Winnipeg Rugby Football Club v. Freeman, D.C., 140 F.Supp. 365.

      . Savoy Record Co. v. Mercury Record Corp., supra.
      “ ⅝ * * wherever this court has not proper jurisdiction to enforce specific performance, it operates to bind men’s consciences, as far as they can be bound, to a true and literal performance of their agreements; and it will not suffer them to depart from their contracts at their pleasure, leaving the party with whom they have contracted to the mere chance of any damages which a jury may give.” Lumley v. Wagner, 1 DeG., M. & G. 604.


author: CLAY, Commissioner.

text:
    Ed KELLERMAN, and Ed Kellerman, Jr., Appellants, v. C. M. VAUGHAN, Sr., Appellee.
    Court of Appeals of Kentucky.
    Sept. 30, 1966.
    Rehearing Denied Dec. 16, 1966.
    James M. Todd, Lexington, for appellants.
    I. Jay Miller, Lexington, for appellee.
   CLAY, Commissioner.

This is a suit for malicious prosecution brought by Ed Kellerman and his son, Ed Kellerman, Jr. The second amended complaint was dismissed on defendant’s motion for failure to state a claim. The principal controversy rages over Civil Rule 9.02, which somewhat strains our comprehension.

Count 1 of the amended complaint alleges that the defendant appeared before the Fayette County Grand Jury and without probable cause willfully, wantonly, falsely and maliciously charged the father with violating a specific statute relating to misrepresentation of a financial condition. It is alleged that the testimony was false, that on the basis thereof the grand jury indicted the father, a warrant was issued for his arrest, and subsequently the indictment was dismissed. This plaintiff demanded judgment for $15,200 compensatory damages and $10,000 punitive damages.

We are at a loss to understand why this pleading does not state a cause of action for malicious prosecution. Defendant’s motion to dismiss made particular reference to plaintiff’s failure to comply with the provisions of CR 9.02, and apparently the trial court had dismissed prior pleadings on this ground. Insofar as pertinent at this point, CR 9.02 provides :

“In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. * *

Obviously the Rule relates to claims arising out of fraud or mistake. This is not such a suit. There is not even an allegation of fraud or mistake in the amended complaint.

Defendant contends this plaintiff was required to go into further detail to explain in what manner defendant’s acts were willful, wanton, false and malicious. The second sentence of CR 9.02 specifically provides that such conditions of mind may be averred generally. They are descriptive of the nature of a defendant’s conduct. While such conduct must be specified with reasonable particularity, the motive may be alleged generically. For pleading purposes we do not know how one would break down allegations of malice and willfulness into more definitive terms. This complaint very clearly alleges the nature of defendant’s conduct which gives rise to plaintiff’s claim. We believe the trial court erroneously dismissed it.

Count 2 of the amended complaint is in a somewhat different category. It relates to the plaintiff’s son who had the same name, with the addition of “Jr.” The allegations are substantially those appearing in the first Count, except the son states he was served with a warrant issued for the arrest of his father, on' which someone whose identity is not known had added the abbreviation “Jr.” Considered independently, there is some doubt that Count 2 of this pleading stated a cause of action on behalf of the son. However, in the light of prior pleadings (which we think the trial court erroneously dismissed) and the first Count of this amended complaint, it appears the son is claiming that defendant’s allegedly wrongful conduct was intended by defendant to injure him either jointly with or independently of his father.

We have said that a court should not dismiss a claim unless it appears the plaintiff would not be entitled to relief under any state of facts which could be proved in support of it. Ewell v. Central City, Ky., 340 S.W.2d 479. We are of the opinion that this amended complaint was amply sufficient to give defendant adequate notice of the claims of both plaintiffs. He did not move for a more definite statement under CR 12.05, and his Answer shows he fully understood the nature of those claims. The pleading process is no longer a game. The trial judge should not have cast the plaintiffs out of court.

The judgment is reversed for consistent proceedings.

      . A pleading alleging only that defendant “acted maliciously” would state no cause of action or claim. This terminology would be amply sufficient, however, if it were descriptive of specified conduct which violated the pleader’s rights. See Clay, Kentucky Practice, Vol. 6, Comment 3.


text:
    Marvin KINNETT et al., Appellants, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 7, 1966.
    Rehearing Denied Dec. 16, 1966.
    Wallis H. Manske, Louisville, Marvin Kinnett, pro se, for appellants.
    Robert Matthews, Atty. Gen., Joseph H. Eckert, Asst. Atty. Gen., Frankfort, for appellee
   CLAY, Commissioner.

Appellants were convicted of grand larceny and sentenced to three years in the penitentiary. On this appeal the questions raised relate only to the argument of the prosecuting attorney and the competency of certain evidence.

There had been a change of venue for the trial of this action from Russell County to Pulaski County. In the closing argument the Commonwealth’s attorney al • luded to the fact that the case had been sent over from Russell County. No objection was interposed to these statements and of course appellants cannot raise their objections for the first time in this Court. Caudill v. Commonwealth, 239 Ky. 712, 40 S.W.2d 334.

It is next contended the Commonwealth’s attorney, in his closing argument, misinterpreted the testimony of one of the defense witnesses. There was not a technical objection to this argument and the court made no ruling when appellants’ attorney called attention to what the record would show. Without deciding whether counsel’s remarks constituted a proper objection, we do not find any alleged “misquotation” of the witness’ testimony. Some leeway must be accorded each side in arguing the meaning and effect of evidence. Lewis v. Commonwealth, 307 Ky. 733, 212 S.W.2d 269. We do not believe the Commonwealth’s attorney went beyond the proper bounds of lawful and fair argument. See Stumbo v. Commonwealth, Ky., 299 S.W.2d 115.

The final contention is that the Commonwealth’s cross-examination of a defense witness was improper because it brought out the fact that the defendants had been charged with other crimes. The witness was testifying for appellants with respect to their honesty, truthfulness and integrity. The witness himself volunteered that appellants had been “charged with this other business” (which was some other criminal offense). The Commonwealth’s attorney then proceeded to question the witness as to whether the fact that appellants had been charged with other crimes would affect his evaluation of their moral reputations.

We think this a legitimate cross-examination to test the credibility of the witness’ testimony relating to the reputations of appellants. It is similar to cross-examination of a defendant who testifies to his good reputation for peace and quiet. The Commonwealth may then cross-examine concerning specific offenses committed by him. Payne v. Commonwealth, 251 Ky. 776, 64 S.W.2d 888. The questions asked were in good faith designed to test the witness’ credibility. While appellants would have been entitled to an admonition if they had requested it, in the absence of such request we do not find prejudicial error. See Watkins v. Commonwealth, Ky., 378 S.W.2d 614.

The judgment is affirmed.