Reed v. Bright

Decision Date09 February 1911
PartiesREED et al. v. BRIGHT et al.
CourtMissouri Supreme Court

J. B. McGilvray and R. A. Mooneyham, for relators. J. D. Harris, for respondents.

GRAVES, J.

This is an original action in this court, the purpose of which is to prohibit the respondent, Henry L. Bright, as one of the judges of the Jasper county circuit court, from canceling certain orders in the case of Ollie M. Reed et al. v. Samuel Moss et al., defendants. To abbreviate, the pleadings show that in the case aforesaid judgment was entered for the defendants. The record of the court also shows that on the day such judgment was entered, the following entries of record were made in the court presided over by the said Bright, the respondent herein:

"Trial by court and decree for defendants as prayed and as per record entry.

"Motion for new trial filed.

"Motion for new trial overruled.

"Affidavit for appeal filed.

"Docket fee of $10.00 deposited.

"Appeal granted to Supreme Court.

"Appeal bond in the sum of $500 to be filed with and approved by clerk within ten days after adjournment of present term of court; leave to plaintiff to file bill of exceptions on or before the 3d day of February, 1910, term."

These records are from the clerk's minutes, but it is pleaded and therefore admitted, because respondent stands here upon a demurrer, that they were fully spread of record in the usual and customary form on the same day and before the court adjourned. The court adjourned for the term on the day this judgment was entered and the records perfecting the appeal were made. By proper order of court the time for filing the bill of exceptions was extended, so that the rights of the appellants were duly preserved, but for the threatened action of the respondent, which action, it is averred, was beyond his power at the time, under the facts pleaded.

Later the defendants, in the suit aforesaid, after the appeal was granted to this court and all the entries made as above set out, filed a motion in the nature of an application for an order for writ of error coram nobis. This application sets out all of the records written up from the minutes of the clerk hereinabove set out, and then thus concludes: "The defendants state that in truth and in fact no motion for new trial was filed by plaintiffs in said case on the 18th day of December, 1909, and that no such motion was filed during the said November, 1909, term of said circuit court; that no affidavit for appeal was filed on said 18th day of December, 1909, that no affidavit for appeal was filed during said November, 1909, term of said circuit court, and that no affidavit for appeal was filed at any time in said case, and that no bond for appeal was ever filed therein. Defendants further state that on the 20th day of December, 1909, two days after the final adjournment of said November term of said court, R. A. Mooneyham, one of the attorneys for the plaintiffs, filed with the clerk of said circuit court an instrument purporting to be a motion for new trial in said cause, and that James Burke, deputy circuit clerk of said court, as such deputy clerk, dated back the time of the filing of said purported motion for new trial, so that the filing date indorsed on said purported motion for new trial showed that it had been filed on the 18th day of December, 1909, while in truth and in fact said purported motion for new trial was filed on the 20th day of December, 1909, and in vacation of said court. And that the record of the filing of a motion for new trial by plaintiffs on the said 18th day of December, 1909, the record of the court's action in overruling said motion on said day, the record of the filing of an affidavit for appeal, and the record of the court's action thereon in allowing an appeal to the Supreme Court on said date, the order allowing plaintiffs leave to file bill of exceptions in said cause on or before the 3d day of the next term of court thereafter, and the court's order fixing the amount of the appeal bond, and allowing same to be filed with and approved by the clerk of said court within 10 days after the final adjournment of court, were all ordered, made, and done in consequence of the errors of fact as hereinbefore set forth, but which do not appear on the record, so that in said proceedings there is manifest error prejudicial to the rights and interests of the defendants. Wherefore, the premises considered, the defendants pray that this honorable court vacate the said orders and entries of records showing the filing of said motion for new trial, the overruling of same, the filing of an affidavit for an appeal from said judgment, and the allowance of such appeal to the Supreme Court, the order for the appeal bond, with leave to file with the clerk as aforesaid, and the order granting to plaintiffs leave to file bill of exceptions in said case, and that all said records be vacated and for naught held, and for all and such other relief as to the court may seem meet and proper."

Relator's petition sets out all the facts and records in the case of Reed et al. v. Moss et al., and concludes by charging that the said Bright was threatening to assume jurisdiction and hear and determine said motion, and was threatening to sustain the same on September 3, 1910, and would sustain the same on that day, unless prohibited by this court. It is further averred that his threatened action was beyond the jurisdiction of said respondent in said cause.

Preliminary rule was granted in vacation by the late Chief Justice James D. Fox, and the respondent has filed return in the nature of a demurrer, and stands thereon. The facts are therefore admitted and we have purely questions of law. This is a sufficient statement of the case as to facts.

1. It stands admitted by the return in the nature of a demurrer that the respondent is assuming to act on the motion filed by the defendants in the original suit, and not only so, but that he would have sustained the same on the date named, but for the intervention of our preliminary rule to show cause. If, therefore, under the facts stated, the respondent was without lawful authority or jurisdiction to act, the final writ should go. That circuit courts in this state can entertain writs of error coram nobis, or motions in the nature of the common-law writ of error coram nobis, is unquestioned. State ex rel. v. Riley, Judge, 219 Mo. 667, 118 S. W. 647, and the cases therein reviewed; State v. Stanley, 225 Mo. 525, 125 S. W. 475, and the cases therein reviewed. The rule in this state is the general rule. The status of the writ is firmly fixed in the modern practice, but of common-law origin. In 5 Encyc. of Plead. and Prac., p. 30, it is said: "Notwithstanding occasional statements that the writ of coram nobis has `fallen into desuetude,' and that `redress obtained through its aid is now sought by motion,' it was a part of the common law received from the mother country, and, when not specially abrogated by statute, still remains a factor in modern practice." But the question we have here is whether or not, notwithstanding this general jurisdiction in circuit courts, the respondent in the present court was exceeding such jurisdiction in the present case. We are convinced that respondent was exceeding his jurisdiction in this case, and for the several reasons that we discuss next.

2. The writ of error coram nobis is a part of the common law to which we have fallen heir. No statute in this state undertakes to define this power of a...

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