State v. Riley

• Citation: 219 Mo. 667,118 S.W. 647
• Parties: STATE ex rel. POTTER et al. v. RILEY.
• Decision Date: 13 April 1909
• Court: United States State Supreme Court of Missouri

118 S.W. 647

219 Mo. 667

STATE ex rel. POTTER et al. v. RILEY.

Supreme Court of Missouri.

April 13, 1909.

Rehearing Denied May 1, 1909.

1. JUDGMENT (§ 354)—VACATING JUDGMENT —MOTIONS — IRREGULARITIES APPARENT OF RECORD.

A motion under Rev. St. 1899, § 795 (Ann. St. 1906, p. 758), authorizing the setting aside of judgments for irregularity on motion made within three years after the term at which the judgment was rendered, must be based on an irregularity patent on the record.

2. JUDGMENT (§ 336)—VACATING JUDGMENT —MOTIONS—NATURE OF REMEDY—"WRIT OF ERROR CORAM NOBIS."

A motion to vacate a judgment on the ground that it was entered after the death of the party against whom it was rendered and supported by evidence dehors the record takes the place of the common-law writ of error coram nobis, the purpose of which was to make apparent to the court by evidence dehors the record of some error which did not appear of record and which was unknown to the court, and, where death did not appear of record but had to be shown by evidence, the writ of error coram nobis was the common-law remedy.

3. JUDGMENT (§ 382)—VACATING JUDGMENT —MOTIONS—PERSONS ENTITLED TO RELIEF.

A motion to set aside a judgment dismissing the cause after the death of plaintiff, suing to have a deed adjudged a mortgage, and obtaining a judgment determining that the deed was a mortgage and appointing a referee to take an accounting between the parties, is properly filed by plaintiff's heirs at law, for they are privies to the record as heirs and are injured by the judgment of dismissal.

4. JUDGMENT (§ 334)—WRIT OF ERROR CORAM NOBIS.

A writ of error coram nobis can only be procured by one who is a party or privy to the record or injured thereby.

5. ATTORNEY AND CLIENT (§ 76)—TERMINATION OF RELATION—DEATH OF CLIENT.

The death of the client terminates the relation of attorney and client.

6. JUDGMENT (§ 486)—COLLATERAL ATTACK— DEATH OF PARTY.

Where a party dies pending a suit wherein the court has acquired jurisdiction of the person and subject-matter before the rendition of judgment, and a judgment is rendered against the party without any showing of such death, the judgment is voidable only and cannot be collaterally attacked.

7. JUDGMENT (§ 486)—COLLATERAL ATTACK— DEATH OF PARTY BEFORE SUIT.

But where the party was dead at the time of the institution of the suit, the judgment is void and may be collaterally attacked.

8. DISMISSAL AND NONSUIT (§ 48)—VALIDITY.

An order of dismissal entered at a term subsequent to the rendition of a final judgment in the cause is void.

9. DISMISSAL AND NONSUIT (§ 7)—VOLUNTARY DISMISSAL AFTER SUBMISSION OF CAUSE.

Under Rev. St. 1899, § 639 (Ann. St. 1908, p. 658), providing that plaintiff shall be allowed to dismiss at any time before the suit is finally submitted to the court and not afterward, an order of dismissal entered while the whole case was under submission and before the rendition of judgment is void on the face of the record.

10. MANDAMUS (§ 164)—PLEADING—ADMISSIONS.

The matters well pleaded by relator in mandamus and not denied by respondent in express terms are admitted as true.

11. JUDGMENT (§ 217)—FINAL JUDGMENT.

A decree adjudging deeds to be mortgages, and appointing a referee to take evidence on the questions of the value of the improvements placed on the lands by defendant and the amount of the mortgage debt, was not final, and there could be no final decree until the report of the referee and the exceptions thereto had been passed on by the court.

12. JUDGMENT (§ 217)—"FINAL JUDGMENT" —"INTERLOCUTORY JUDGMENT."

Generally a judgment which at once disposes of the entire controversy, settling the rights of the parties, leaving nothing for further consideration, is final, while a judgment which merely settles some preliminary point or reserves for future determination some detail essential to the complete adjustment of the litigation is not final but interlocutory only.

13. DISMISSAL AND NONSUIT (§ 7)—POWER OF COURT—STATUTES.

A decree adjudged that deeds were mortgages, and appointed a referee to take evidence on the questions of the value of improvements placed on the lands by defendant and the amount of the mortgage debt. The referee made a report, but no hearing was had thereon and exceptions taken thereto. Held, that though Rev. St. 1899, § 714 (Ann. St. 1906, p. 711), provides that the exceptions to the referee's report shall be argued without delay, the cause was not finally submitted to the court within section 639 (page 658), providing that plaintiff shall be allowed to dismiss his suit before the cause is finally submitted.

14. MANDAMUS (§ 3)—ADEQUACY OF OTHER REMEDY.

Mandamus does not lie to compel a court to set aside an order dismissing a cause entered after the death of plaintiff and reinstate the cause, since the heirs of plaintiff may file a motion to vacate the judgment of dismissal.

15. JUDGMENT (§ 518)—VACATING JUDGMENT —DIRECT ATTACK.

A motion to vacate a judgment in lieu of the common-law writ of error coram nobis is in the nature of an independent and direct attack on the judgment.

16. APPEAL AND ERROR (§ 82)—JUDGMENTS APPEALABLE.

A judgment on a motion to vacate a judgment in lieu of the common-law writ of error coram nobis is a final judgment and appealable.

17. APPEAL AND ERROR (§ 82)—ORDERS APPEALABLE—"SPECIAL ORDER AFTER FINAL JUDGMENT."

A judgment of dismissal and for costs is a final judgment, and an order overruling a motion to vacate the judgment is a special order after final judgment and appealable under Rev. St. 1899, § 806 (Ann. St. 1906, p. 769), authorizing an appeal from any special order after final judgment.

In Banc. Mandamus by the State, on the relation and to the use of Jane C. Potter and others, against Henry C. Riley, to compel respondent to set aside an order of dismissal of a cause and to reinstate the cause. Peremptory writ denied.

Fordyce, Holliday & White, for plaintiffs. L. R. Thomason, for respondent.

GRAVES, J.

This is an original proceeding in this court by which relators seek by mandamus to compel Hon. Henry C. Riley, judge of the circuit court of Mississippi county, to set aside an order of dismissal heretofore entered by him in said court in a cause then pending wherein James M. Potter was plaintiff and Thomas Bullivant et al. were defendants, and to reinstate the cause and to proceed with said cause, and to hear and determine the same. This court issued its alternative writ of mandamus, the allegations of which are, in substance, as follows: That relator and one Francis J. Bullivant, son of Thomas Bullivant, are the only heirs at law of James M. Potter, deceased, who died January 5, 1896; that relators are all nonresidents of Missouri, but said Francis J. Bullivant is a resident of Missouri; that two relators (naming them) are minors and appear by their next friend, Samuel W. Fordyce; that at the time of his death James M. Potter was the owner of certain real estate in Butler county, Mo.; that in September, 1890, said James M. Potter instituted in the circuit court of Butler county an equitable action against Thomas Bullivant, Stephen M. Chapman, and others to determine their respective rights and interests in and to said real estate; that a change of venue in said cause was granted to the circuit court of Mississippi county; that said cause was dismissed as to all defendants except Bullivant and Chapman; that on October 12, 1892, said cause was finally submitted upon the pleadings and evidence in the said circuit, over which respondent, Henry C. Riley, presided as the regular judge thereof; that the court made and entered of record a decree determining that the said James M. Potter was the owner of said real estate, and that certain deeds given by said James M. Potter to Thomas Bullivant were in fact mortgages, and by consent of all parties to the cause appointed J. Perry Johnson as a referee to determine the value of certain improvements in said land erected by Bullivant, and to take an accounting between the parties; that said decree was final, and no appeal was taken therefrom; that the referee made and filed his report, to which Bullivant and Chapman filed exceptions; that before said exceptions were passed upon by the court the said Potter died on the date aforesaid; that on April 7, 1896, the death of James M. Potter not having been suggested to the court in said cause, on the motion of L. D. Grove, who had been the attorney of record for said Potter, the respondent, as judge of said court, wrongfully and unlawfully entered an order or judgment of dismissal in said cause; that James M. Potter died intestate, and no administration had been had upon his estate, and all his real estate has descended to relators and Francis J. Bullivant; that on October 8, 1907, relators filed their written motion in said cause and in said court requesting said court to set aside said order of dismissal and reinstate said cause; that respondent wrongfully overruled said motion, and refused to reinstate said cause; that respondent at all said times was and is now the judge of said court; that in making said order of dismissal respondent violated section 639, Rev. St. 1899 (Ann. St. 1906, p. 658); that said cause had been finally submitted to respondent, and he had no legal right to dismiss the same; that said dismissal was after a final decree and judgment had been entered in the said cause, and after the term had expired at which said decree was entered, contrary to the laws of this state; that the respondent had no right to dismiss the cause upon the motion and suggestion of L. D. Grove, because his authority to act terminated with the death of Potter; that the respondent at the time individually knew of the death of Potter; that the death of Potter had been suggested in another case pending in respondent's court on the same day that the order of dismissal was made; that it is the legal and ministerial duty of responden...