Warren v. Order of Railway Conductors of America

• Citation: 201 S.W. 368,199 Mo.App. 200
• Parties: M. T. WARREN, Appellant, v. ORDER OF RAILWAY CONDUCTORS OF AMERICA, et al. Respondents
• Decision Date: 06 February 1918
• Court: Court of Appeal of Missouri (US)

201 S.W. 368

199 Mo.App. 200

M. T. WARREN, Appellant, v. ORDER OF RAILWAY CONDUCTORS OF AMERICA, et al. Respondents

Court of Appeals of Missouri, Springfield

February 6, 1918

Appeal from Greene County Circuit Court.--Hon. Arch A. Johnson Judge.

AFFIRMED AS TO M. T. WARREN AND O. T. HAMLIN, AND REVERSED AS TO W. W. HAMLIN AND L. L. COLLINS.

Hamlin & Hamlin, for appellants.

Tatlow & Mitchell, for respondents.

BRADLEY J. Farrington, J., concurs. Sturgis, P. J., concurs in paragraph I, III, and IV. and dissents in paragraph II.

OPINION

BRADLEY, J.

On August 21, 1914, plaintiff, M. T. Warren, filed her petition in the circuit court against the defendant, Mutual Benefit Department of the Order of the Railway Conductors of America and afterwards on January 3, 1917, an amended petition was filed making the Order of Railway Conductors of America, a party defendant. Defendants limited their appearance to a plea to the jurisdiction. The trial court on February 3, 1917, overruled the plea to the jurisdiction, and upon trial, judgment went in favor of plaintiff.

The facts are as follow: Andrew L. Warren, husband of plaintiff, on the 22nd day of February, 1907, had a policy or certificate of insurance then in full force in the Mutual Benefit Department of the Order of Railway Conductors of America, in which plaintiff was named as beneficiary. Warren disappeared on the last-named date, and was not heard of until March, 1917. After waiting more than seven years after the disappearance of her husband, plaintiff filed suit on the policy. It does not appear why, but the case was passed from term to term covering a period of some two years and six months. On February 2, 1917, at the January term of the circuit court upon a trial before the court without a jury, judgment went for plaintiff. On the 5th day of February defendants filed their motion for a new trial and in arrest. No action was taken on these motions until the 24th day of February, at which time the defendants appeared in open court and announced that they were ready and willing to pay the judgment rendered against them, and the motions were thereupon overruled, the judgment and costs were paid, and plaintiff by her counsel in open court acknowledged satisfaction; all of which matters were entered of record. The certificate or policy sued on, being at that time misplaced, plaintiff by her attorneys gave a receipt for the policy which receipt provided that in the event the policy was found, it would be delivered to defendants. Counsel for plaintiff had a contract by which the fee was contingent upon recovery. Upon the payment of the judgment, plaintiff, and her counsel received their respective proportions thereof according to contract.

In these circumstances defendants appeared in court on the 19th day of March, 1917, during the same term at which judgment was rendered, and filed a motion or written suggestions asking that the judgment be set aside, and that plaintiff and her counsel be required to make restitution. The motion or suggestions recited the fact of judgment, payment and satisfaction; and charged that the insured, Andrew L. Warren, was not dead at the time the judgment was rendered, but was, at that time, and was then, alive. Notice of the filing of this motion, and that it would be called up for hearing on March 24th was duly served upon plaintiff, and was served upon W. W. Hamlin of the firm of Hamlin, Collins & Hamlin, counsel for plaintiff. The hearing of this motion was passed until the 14th day of April, which was still the January term. At the hearing of this motion the parties made the following admissions, upon which the court determined the motion:

"It is admitted that said judgment has been paid and fully discharged and satisfaction entered in open court, and that since the satisfaction of such judgment the plaintiff and defendants have learned that Andrew L. Warren did not depart this life on the 22nd day of February, 1907, as alleged in the petition, or at any other time, but that on the 3rd day of February, 1917, at the time said judgment was rendered, the said Andrew L. Warren was then and still is in full life. It is further admitted that at the time the said judgment was satisfied, to-wit; on the 24th day of February, 1917, the attorney for plaintiff had mislaid the certificate sued upon and was unable to produce the same so as to turn it over to the defendant at the time of the satisfaction of the judgment, and that the defendant in addition to the satisfaction of the judgment, in open court took a receipt from plaintiff showing the satisfaction thereof, and that the certificate was to be turned over to defendant if the same should be found. It is further admitted that neither the plaintiff nor Andrew L. Warren paid any assessments under the said certificate of insurance since the 22nd day of February, 1907, which kept the certificate in force until April, 1907, (1917) as the said Andrew L. Warren was required to do by the constitution and by-laws and the terms of said Order, as well as the terms of said certificate, in order to keep the said insurance provided for by the terms of said certificate in force, and that on the said 24th day of February, 1917, when the said judgment was satisfied of record as aforesaid, nothing had been paid as dues or premium on the said certificate of insurance by the said Warren since February 22, 1907, because the plaintiff believed her husband Andrew L. Warren had died on or about February 22, 1907. That the defendants have not at any time tendered back to the plaintiff the receipt taken at the time of the satisfaction of the judgment as aforesaid. It is further admitted that the plaintiff in good faith instituted and prosecuted the action to judgment on said insurance policy believing Andrew L. Warren to be dead. It is admitted that Hamlin, Collins & Hamlin had no interest in said judgment other than attorneys for the plaintiff. That under the contract with the plaintiff, O. T. Hamlin was to be paid by the plaintiff as a contingent fee one-half of whatever might be recovered by the plaintiff in this case and that he, the said attorney received from the defendant a check for the full amount of the judgment and cost, and after paying the cost, he accounted to and paid the plaintiff one-half thereof and retained the other half under his said contract."

The trial court upon the hearing of the motion set aside the judgment and ordered the plaintiff to return to defendants the amount of money she had received as the proceeds of the judgment, and ordered the firm of Hamlin, Collins & Hamlin counsel for plaintiff to return to defendants the amount of money received by them as the proceeds of the judgment, and also ordered the clerk of the court to return to defendants the amount paid to him as costs and execution was ordered to issue to satisfy said order and judgment for restitution. From the action of the court in setting aside the judgment and the satisfaction thereof, and ordering restitution as aforesaid, plaintiff, and her counsel appeal to this court.

Appellants assign as error: (1) The act of the trial court in setting aside the judgment, and the satisfaction thereof; and (2) the order and judgment for restitution against plaintiff, and her counsel.

I.

Learned counsel for appellants in their brief concede that the trial court had the power and authority during the term which the judgment was rendered, independent of any motion or suggestion, to set aside the judgment for good cause. But they say, since the fact, that Warren was alive at the time the judgment was rendered, and paid, was called to the attention of the court by the motion, that as a consequence the court in dealing with this motion was bound by the law governing the common-law writ of error coram nobis. This ancient writ is frequently invoked to aid our code, so to speak, to the end that substantial justice may be done. In Cross v. Gould, 131 Mo.App. 585, 597, 110 S.W. 672, 677, Judge NORTONI of the St. Louis Court of Appeals very clearly defines the purposes of this writ, and gives numerous instances where it may be invoked. It is there said: "A writ of error coram nobis is parcel of that procedure which came to us with the common law. It issues out of and for the purposes of review by the same court in which the record lies and predicates upon errors of fact as contradistinguished from errors of law. Besides for error in process through the default of the clerk, the writ would lie at common law when the court had proceeded in a case as though a fact which was material to its right to proceed, existed, when it did not exist, and when the absence of the fact assumed to exist, entirely defeated the power of the court to attain a valid result in its proceeding. It may be taken as a proposition settled entirely beyond controversy in the law of this country and England that the writ of error coram nobis does not go to errors arising on facts submitted to a jury, referee, or to the court sitting as a jury to try the issues of fact. Nor will this writ lie for the purpose of correcting errors of law." Many instances where this writ may be invoked are cited in Cross v. Gould, supra, and among them are: Where judgment had been given against an insane person, as though sane, it was held to be such an error of fact not appearing on the record as essentially invalidating the proceedings, the judgment was set aside on writ of error coram nobis. [Heard v. Sack, 81 Mo. 610; Adler v. State, 35 Ark. 517.] Where the defendant dies after service of process, and before judgment, the writ of error coram nobis is the proper remedy to set aside the judgment for the reason it is an error of fact not appearing on the record which renders the judgment invalid....