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Morris v. Wallach

Court of Appeals of Missouri, Eastern District, Fourth Division

August 26, 2014

FRANK MORRIS, Respondent,
v.
ROGER WALLACH, Appellant

As Corrected August 26, 2014.

Page 572

Appeal from the Circuit Court the City of St. Louis. Honorable Joan L. Moriarty.

Richard B. Korn, St. Louis, MO, for appellant.

Gary M. Siegel, Clayton, MO, for respondent.

Patricia L. Cohen, Judge. Lisa S. Van Amburg, P.J., and Philip M. Hess, J., concur.

OPINION

Page 573

Patricia L. Cohen, Judge

Introduction

Roger Wallach (Defendant) appeals a judgment of the Circuit Court of the City of St. Louis denying his motion to set aside a default judgment in favor of Frank Morris (Plaintiff). Defendant claims that the trial court erred in denying his motion because the default judgment was void. We affirm.

Factual and Procedural Background

On October 5, 2009, Plaintiff filed a petition against Defendant for breach of contract. In the petition, Plaintiff alleged that he loaned Defendant $45,000 for the purchase of real estate, in exchange for which Defendant had promised to pay Plaintiff $60,000. Plaintiff claimed that Defendant breached the contract and requested an award of damages in the amount of $60,000 plus interest.

The trial court issued Defendant a summons, which the sheriff returned non est on October 6, 2009, and a pluries summons, which the sheriff returned non est on December 3, 2009. On December 16, 2009, Plaintiff requested the trial court issue a pluries summons to Defendant and appoint Timothy Woodburn of Gateway Investigations as a special process server. The trial court granted Plaintiff's request.

Page 574

On January 28, 2010, Plaintiff filed a " proof of service," which Mr. Woodburn had completed and signed. The proof of service stated: " [O]n the 5th day of January, 2010 at 6:30 p.m.[,] the summons/petition/subpoena/mechanic's lien/order & motion was served to Roger Wallach as he identified himself upon request." (emphasis in original).

Defendant failed to file responsive pleadings and, on April 13, 2010, Plaintiff requested an interlocutory order of default, which the trial court granted. The trial court set the matter for a default hearing. On May 18, 2010, the trial court held a hearing and entered a default ...


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