Hyatt v. Wolfe
| Decision Date | 10 May 1886 |
| Citation | 22 Mo.App. 191 |
| Parties | LEVI T. HYATT, Plaintiff in Error, v. G. C. WOLFE, Defendant in Error. |
| Court | Kansas Court of Appeals |
ERROR to Johnson Circuit Court, HON. NOAH M. GIVAN, Judge.
Reversed and remanded with directions.
Motion for re-hearing overruled.
Statement of case.
This is an action, in the nature of a bill in equity, to vacate certain entries, in the form of judgments, made by the circuit court of Johnson county.
The undisputed facts, as alleged in the petition, and established at the trial, are, that at the February term, 1877, of said court, the plaintiff recovered judgment against the defendant, founded on a promissory note, for the sum of $439.36. After said term, in vacation, the defendant filed his petition with the clerk to have said judgment reviewed on the ground of misconduct of the trial judge in rendering said judgment. At the return term thereafter, on motion of defendant, an execution issued on said judgment, in favor of plaintiff, was stayed until the determination of said bill of review. There was also pending at this time, in said court an action in favor of defendant Wolfe against plaintiff Hyatt, based on an account alleged to be owing from Hyatt to Wolfe.
During the pendency of these several actions, the parties agreed upon a submission to arbitration, in writing, as follows:
The arbitrator made an award, declaring, inter alia, that it should operate as a discharge and satisfaction of said judgment, and as a dismissal of said suits between plaintiff and defendant, and providing for costs, etc., therein.
Afterwards, at the February term, 1878, of said court, the following entries were made of record in said pending suits:
" No. 28.
G. C. WOLFE, Plaintiff
v.
L. T. HYATT, Defendant.
Now comes the parties aforesaid, by their respective attorneys, and by consent and agreement, this cause is dismissed in accordance with the award of the arbitrator filed herein; that is to say: (then follows in full the award). It is, therefore, ordered, and adjudged, and decreed by the court that this cause be dismissed; that said defendant go hence," etc.
" No. 62.
G. C. WOLFE, Plaintiff, ) Petition to set aside judgment.
v. )
L. T. HYATT, Defendant. )
Now comes the parties aforesaid, by their respective attorneys, and by consent and agreement this cause is dismissed at the cost of said plaintiff, and in accordance with the award of J. L. Warren, arbitrator, as set forth in the preceding case, No. 28, of G. C. Wolfe v. L. T. Hyatt.
It is therefore ordered and adjudged by the court that this cause be dismissed; that said defendant go hence without day, and recover of plaintiff his costs expended herein, and have, thereof, execution."
After this Wolfe brought action against Hyatt, on said award, which went to the supreme court on appeal, and the award was pronounced, by the opinion and judgment of the supreme court, to be a nullity, and of no force or effect. 76 Mo. 156.
The petition in the case at bar, after setting out the facts of record, charges that said entries were false, and fraudulently obtained by defendant; that plaintiff did not so appear, in person, or by attorney, and agree and consent thereto; and that the fact of such entries having been made first came to his knowledge in October, 1883. The petition alleges that, by reason of the premises, the defendant asserts and maintains that plaintiff is estopped and concluded from enforcing his said judgment against defendant for the recovery of said debt of $439.36.
The evidence further adduced at the trial will sufficiently appear in the opinion of the court.
The trial court found for defendant, and dismissed the petition. Plaintiff prosecutes this writ of error.
SAMUEL P. SPARKS, for the plaintiff in error.
I. The recitals in the judgment sought to be set aside in this proceeding, although false, were not open to collateral attack, but will be vacated upon a proper proceeding. Bernecker v. Miller, 44 Mo. 102; Delworth v. Rice, 48 Mo. 124; Johnson v. Beazley, 65 Mo. 250; Childs v. Shannon, 16 Mo. 331.
II. This proceeding, whether viewed as in the nature of a writ of error coram nobis, or as a bill in equity, is not affected by the limitation of three years fixed by sections 3684-5-6, Revised Statutes; for the relief sought does not fall within the purview of these sections. Marx v. Fore, 51 Mo. 69; Rogers v. Given, 21 Iowa 58.
III. Courts of equity have always entertained jurisdiction to open, set aside and vacate judgments at law, obtained by fraud, or some grievous hardship not relievable at law. Freeman on Judg. (3 Ed.) sect. 489; Sumner v. Whitney, 1 Mo. 708; Reed v. Hansard, 37 Mo. 199; Smith v. Sims, 77 Mo. 269.
IV. By the judgment of the supreme court, to which the suit brought by Wolfe against Hyatt on the award was appealed, the award was adjudged to be null and void, and with it fell all the proceedings had by virtue of it, and but for the false recitals in the entries herein sought to be set aside, the parties stood just as if there had been no arbitration. Wolfe v. Hyatt, 76 Mo. 156.
V. Plaintiff had five years, after the discovery of the fraud within ten years, in which to bring his action. Sect. 3230, Rev. Stat.; Babb v. Woodward, 50 Mo. 103; Ibid, 445.
VI. There was no evidence to uphold the finding and decree. This court ought and will, to ascertain this, review the testimony. Craig v. Smith, 65 Mo. 536.
O. L. HOUTS, for the defendant in error.
I. The petition does not state facts sufficient to authorize the relief prayed, or any relief. Smith v. Sims, 77 Mo. 269; Carolus v. Koch, 72 Mo. 645; Duncan v. Gibson, 45 Mo. 352.
II. This is a proceeding to set aside a final judgment, and cannot be maintained because it was not commenced within three years from the time said judgments were rendered. Sect. 3686, Rev. Stat.; Craig v. Smith, 65 Mo. 536. The action was commenced more than five years after the judgments assailed were rendered, and such delay and laches would be a bar to the equitable relief sought, independently of the statute. The failure to " discover" will not avail plaintiff; the judgments were made and entered in open court, in actions to which he had appeared as a party, and he is conclusively presumed to have known when they were rendered and what they were. Having had a plain legal remedy he is not entitled to equitable relief. Sect. 3704, Rev. Stat.
III. " A party will not be aided, after a trial at law, unless he can impeach the justice of the verdict on grounds of which he could not have availed himself, or was prevented by fraud or accident, or the act of the opposite party unmixed with negligence or fault on his part." No misconduct of defendant is set up, or relied upon. Ritters v. Press Co., 68 Mo. 458.
IV. This court will defer to the finding of the trial court, unless it has manifestly disregarded the evidence. Springer v. Kleinsorge, 83 Mo. 152; Snell v. Harrison, 83 Mo. 651; 76 Mo. 537.
V. As the plaintiff in error in this case has not set out in his abstract all the evidence, he cannot expect this court to go into the abstract, or reverse the judgment upon the question of the weight of the evidence.
I. It is to be inferred from the strenuousness with which defendant's counsel urge the point that the trial court may have placed its conclusion upon the ground that this action was barred by the three years' limitation prescribed in section 3686, Revised Statutes, which declares that: " If such petition for review be not filed within three years after such final judgment is rendered, the same shall stand absolute, whether notice thereof be given or not."
This refers to the proceeding provided for in section 3684, of the same statute, which is as follows: " When such interlocutory judgment shall be made, and a final judgment entered thereon against any defendant who shall (not) have been summoned, as required by this article, or who shall not have appeared to the suit, etc., such final judgment may be set aside, if the defendant shall, within the time hereinafter limited, appear, and, by petition for review, show good cause for setting aside such judgment."
This statute has no application to the facts of this case, and to this character of action. It pertains to the instance of interlocutory judgments, rendered on constructive service where there has been no appearance. Campbell v. Garton, 29 Mo. 344; Tennison v. Tennison, 49 Mo. 110. The word " not," as it appeared in the corresponding section of the statute of 1855 (sect. 13, p. 1280), immediately preceding the words " have been summoned," is omitted, through a clerical mistake, in the statute of 1879. Otherwise the statute would be that a defendant who had been regularly summoned with personal service,...
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