Cross v. Gould

• Citation: 131 Mo. App. 585,110 S.W. 672
• Parties: CROSS et al. v. GOULD et al.
• Decision Date: 12 May 1908
• Court: Court of Appeal of Missouri (US)

110 S.W. 672

131 Mo. App. 585

CROSS et al. v. GOULD et al.

St. Louis Court of Appeals. Missouri.

May 12, 1908.

1. APPEAL AND ERROR — REVIEW — HARMLESS ERROR — JUDGMENT CORRECT ON MERITS.

Even though the trial court erred in striking out a motion to vacate a judgment, under Rev. St. 1899, § 865 (Ann. St. 1906, p. 812), providing that the Supreme Court or Court of Appeals shall not reverse a judgment unless it believes that error was committed against appellant materially affecting the merits, if it appears from an examination of the record that a proper result was reached by the trial court, its judgment will not be disturbed on appeal.

2. JUDGMENT — VACATION — IRREGULARITY — MOTION — STATUTE — COMMON LAW.

A motion to vacate a judgment for irregularity did not have its origin in Rev. St. 1899, § 795 (Ann. St. 1906, p. 758), providing that judgment shall not be set aside on motion for irregularity unless such motion is made within three years, but was a well-known remedy at common law, and the common-law rule was adopted by Rev. St. 1899, § 4151 (Ann. St. 1906, p. 2250), making the common law the rule of decision in this state, unless changed or modified by statute; and the statute recognizes the common-law remedy, but requires the motion to be made within three years after judgment, while at common law the motion should usually, but not always, be filed at the term at which the judgment sought to be vacated was rendered.

3. SAME — "IRREGULARITY."

A motion to set aside a judgment for irregularity, as contemplated by Rev. St. 1899, § 795 (Ann. St. 1906, p. 758), providing that judgment shall not be set aside for irregularity on motion unless made within three years after judgment, is available only where there is some irregularity in the judgment itself or on the face of the proceeding antecedent thereto, and, while the irregularity need not be such as would render the judgment absolutely void, it must show that the judgment was contrary to the established form and mode of procedure, an irregularity, in the sense of the statute, being a want of adherence to some prescribed mode of procedure, which may consist either in omitting something necessary to the orderly conduct of the suit, or in doing it at an unseasonable time or in an improper manner.

4. SAME — "WRIT OF ERROR CORAM NOBIS" AT COMMON LAW — PURPOSE.

A writ of error coram nobis was a commonlaw remedy to review a judgment by the same court in which the record lies, for error of fact as distinguished from errors of law, and was proper at common law where the court had assumed the existence of a material fact which did not exist, and the absence of which deprived the court of power to attain a valid result, but would not lie for errors arising on facts submitted to a jury, referee, or to the court as a trior of fact, nor for the purpose of correcting errors of law.

5. SAME — ERROR OF FACT — SUFFICIENCY.

Plaintiff sued to be subrogated to the rights of the holder of certain notes secured by deed of trust on land, executed by defendant, alleging that N. claimed to have purchased the land from defendant, and that plaintiff purchased the land from N. and paid off the notes for his own benefit and caused the trust deed to be canceled, but defendant denounced the deed to N. as a forgery so that plaintiff had no title. Judgment went for plaintiff by default. Defendant moved to set aside the judgment, and in addition to alleging fraud in procuring it, the affidavit stated that it was not true that N. procured a deed to the land from defendant, or that plaintiff paid the notes and caused the trust deed to be canceled. Held, that no such error of fact was shown such as to make defendant's motion to vacate the judgment a proceeding by writ of error coram nobis at common law.

6. SAME — FRAUD IN PROCURING JUDGMENT — NATURE OF FRAUD.

Under the general practice, a judgment may now be vacated at a term subsequent to its rendition, and not only for the reasons which would support a writ of error coram nobis at common law, but also for fraud practiced in procuring the judgment, and a judgment may be vacated for fraud, irrespective of whether the statute authorizes the proceeding by motion, unless it is forbidden, as common-law courts have an inherent power to vacate judgments for fraud; but the fraud which would justify the setting aside of a judgment must be practiced in the act of procuring the judgment, and not merely as affecting the case generally.

7. SAME — DILIGENCE AND GOOD FAITH OF MOVING PARTY.

Where the courts are asked to administer quasi equitable relief, as by setting aside a judgment for fraud, etc., the party making the application is required to act in good faith and exercise ordinary diligence under the circumstances, and, where he or his attorney has been negligent in seeking relief, it is frequently denied.

8. SAME — DELAY IN APPEARING TO DEFEND — NEGLIGENCE.

Where defendant's counsel resided in another state, and was informed by plaintiff's counsel that the cause would not be tried at the May term, and that he would advise defendant's counsel when the court would convene to try the case, and the latter was thereby induced to remain away from the trial, which was held in May, and judgment was given against defendant by default, whether defendant's counsel was negligent in remaining away from the trial, so as to prevent him from moving to vacate the default judgment, was a question for the trial court, and his conduct was not negligence as a matter of law.

9. SAME — WAIVER BY SUBSEQUENT PROCEEDINGS — MOTION TO CORRECT JUDGMENT.

Though defendant's counsel was fraudulently induced to remain away from court by relying on the statement of plaintiff's counsel that court would not convene at a certain time and that the latter would notify him when it would convene, which he failed to do, and judgment was given by default, by subsequently appearing and moving to correct the judgment nunc pro tunc after learning of the fraudulent conduct of plaintiff's counsel, defendant waived his right to vacate the judgment on the ground of fraud in inducing him to remain away from the trial.

10. SAME.

Where a judgment was given against defendant on default, plaintiff's counsel falsely and fraudulently representing that defendant admitted the merits of plaintiff's case and did not intend to contest it, defendant's counsel, who, as well as defendant, lived in another state, and was not present at the trial, by thereafter moving to correct the judgment nunc pro tunc before he had any knowledge of plaintiff's fraudulent conduct, did not thereby waive the right to move to vacate the judgment thus fraudulently procured.

11. SAME — TIME OF APPLICATION.

Defendant, having moved to vacate the judgment at the next term after discovering the fraud, acted with reasonable diligence, and was not negligent as a matter of law.

12. SAME — RIGHT TO VACATE JUDGMENT — QUESTION FOR COURT.

Plaintiff sued to be subrogated to the rights of the holder of certain notes secured by deed of trust on land, executed by defendant, and alleged that N. claimed to have purchased the land from defendant, and that plaintiff, after searching the records and finding that N. was the owner, purchased the land from him subject to the mortgage, and thereafter paid off the notes for his own benefit, but that defendant claimed the land and denounced the deed to N. as a forgery, so that plaintiff received no title to the land, and judgment was given for plaintiff on default. Defendant afterward moved to set aside the judgment, and in addition to alleging fraud by plaintiff in procuring it, the affidavit alleged that N. had no such deed, and that plaintiff had not discharged the note and mortgage as alleged. Held that, if the facts alleged in the affidavit were true, plaintiff was not entitled to the relief prayed, and hence the facts alleged in the affidavit, in connection with a sufficient showing of fraud in procuring the judgment, were not insufficient as a matter of law to entitle defendant to vacate the judgment, but constituted an issue of fact for the court.

13. SAME — CONSENT JUDGMENT.

A judgment by default was given against defendants, they being induced to remain away from the trial by plaintiff's counsel informing them that the case would not be tried at that term, and plaintiff's counsel fraudulently represented to the court at the trial that defendant admitted plaintiff's claim, and would not contest it. After the judgment, defendant's counsel discovered that there had been a trial, and that the court decreed that, as between plaintiff and defendant, the title to certain land remained in defendant, but that the judgment as recorded did not show this fact, and without any knowledge of plaintiff's fraud in procuring the judgment, defendant moved to correct the judgment nunc pro tunc to make it conform to the decree as rendered and prepared the form of the corrected judgment, which was adopted and entered by the court. Held, that defendant, by moving to correct the judgment and preparing the form of the corrected judgment, did not waive his right to vacate the judgment for fraud of which he then had no knowledge, as the judgment nunc pro tunc was to make the original judgment speak the truth, and defendants, by preparing the corrected judgment for that purpose, were not estopped from vacating it on the theory that they had thereby consented to it.

Appeal from Circuit Court, Shelby County; Nat. M. Shelton, Judge.

Action by D. W. Cross and others against Edward Gould and others. Judgment for plaintiffs on default, and, from an order striking out a motion to set aside the judgment, defendants appeal. Reversed and remanded, with directions to reinstate motion and for further proceedings.

John B. Dale and Geo. B. Gould, for appellants. B. R. Dysart, V. L. Drain, and R. W. Barrow, for respondents.

NORTONI, J.

In this proceeding the immediate relief sought is to set aside a judgment...