Crabtree v. Aetna Life Ins. Co.

• Decision Date: 17 December 1937
• Docket Number: No. 34871.,34871.
• Citation: 111 S.W.2d 103
• Parties: HELEN M. CRABTREE and R.W. HANNA v. AETNA LIFE INSURANCE COMPANY, a Corporation, Appellant.
• Court: Missouri Supreme Court

111 S.W.2d 103

HELEN M. CRABTREE and R.W. HANNA v. AETNA LIFE INSURANCE COMPANY, a Corporation, Appellant.

No. 34871.

Supreme Court of Missouri.

Division Two, December 17, 1937.^*

Appeal from Adair Circuit Court. — Hon. Emert C. Hilbert, Judge.

MOTION TO DISMISS OVERRULED; JUDGMENT REVERSED AND CAUSE REMANDED (with directions).

Morrison, Nugent, Wylder & Berger, C.C. Byers, R.L. Hecker, W.B. Cozad and Nat B. Rieger for appellant.

(1) A motion to set aside the default judgment is the proper method of procedure to obtain the relief prayed for and it is proper to support the motion by affidavits. (a) The motion in this case is the proper method of procedure and serves both as a motion in the nature of a writ of error coram nobis and as a motion to set aside for irregularities. Clowser v. Noland, 72 Mo. App. 217; Maloney v. Hunt, 29 Mo. App. 379; Jones v. St. Joseph & G.I. Ry. Co., 183 Mo. App. 224, 170 S.W. 427; Craig v. Smith, 65 Mo. 536; Baker v. Smith's Estate, 223 Mo. App. 1234, 18 S.W. (2d) 147; Dugan v. Scott, 37 Mo. App. 663; Coonley v. Coonley, 237 S.W. 198. G.M.A.C. v. Lyman, 229 Mo. App. 455, 78 S.W. (2d) 109; Sec. 1101, R.S. 1929; Cross v. Gould, 131 Mo. App. 585, 110 S.W. 672; Simms v. Thompson, 291 Mo. 518, 236 S.W. 876; Scott v. Rees, 300 Mo. 133, 253 S.W. 998; State ex rel. Potter v. Riley, 219 Mo. 667, 118 S.W. 647. (b) The motion is usually heard on affidavits, although oral testimony may be introduced. Clowser v. Noland, 72 Mo. App. 217; Latshaw v. McNees, 50 Mo. 384; Ex parte Gray, 77 Mo. 162. (c) A motion or pleading which is positively verified may be introduced in evidence as proof of the facts stated therein in any proceeding where affidavits are admissible. 2 C.J. Secundum, p. 924, sec. 11(2); Smith v. Stearns Rancho Co., 129 Cal. 58, 61 Pac. 662; Anderson v. Englehart, 18 Wyo. 409, 108 Pac. 978; Landrum v. Landrum, 159 Ga. 324, 125 S.E. 832; State ex rel. Kolbow v. District Court of Second Judicial Dist., 38 Mont. 415, 100 Pac. 207; Renville State Bank v. Kinsberg, 40 S.D. 191, 166 N.W. 643; State ex rel. Boom Co. v. Peterson, 29 Wash. 571, 70 Pac. 71; Loeb v. Smith, 78 Ga. 504, 3 S.E. 458. (2) Where there are material averments which are traversable and which are not traversed, they are admitted. State ex rel. Shartel v. Skinker, 324 Mo. 955, 25 S.W. (2d) 472; State ex rel. Burton v. Montgomery, 316 Mo. 658, 291 S.W. 472; 21 R.C.L., p. 561, sec. 120. (a) The evidence introduced by appellant being uncontradicted, this court should accept the same as true. Anspach v. Jansen, 229 Mo. App. 321, 78 S.W. (2d) 137; Armstrong v. Elrick, 177 Mo. App. 840, 160 S.W. 1019; Clowser v. Noland, 72 Mo. App. 217; 42 C.J. 509, sec. 138; Cal. Title Ins. & Trust Co. v. Consolidated Piedmont Cable Co., 117 Cal. 237, 49 Pac. 1; Craig v. Smith, 65 Mo. 536; State ex inf. Folk v. Talty, 166 Mo. 561, 66 S.W. 361; State ex rel. Currier v. Falkenhainer, 283 Mo. 209, 223 S.W. 100; State ex rel. Clarke v. West, 272 Mo. 314, 198 S.W. 1111. (3) The judgment should be set aside for failure to give notice of the hearing on the motion to stay and application for default judgment. Rule 35, Mo. Sup. Ct.; Harkness v. Jarvis, 182 Mo. 241, 81 S.W. 446; Anspach v. Jansen, 229 Mo. App. 321, 78 S.W. (2d) 137. (a) Judgment will be set aside for failure to give notice to take up a pending motion. Clowser v. Noland, 72 Mo. App. 217; G.M.A.C. v. Lyman, 229 Mo. App. 455, 78 S.W. (2d) 109; Maloney v. Hunt, 29 Mo. App. 379; Jones v. St. Joseph & G.I. Ry. Co., 183 Mo. App. 224, 170 S.W. 427; Doan v. Holly, 27 Mo. 257; George v. Middough, 62 Mo. 549; Heillier v. Loring, 242 Mass. 251, 136 N.E. 248; Turner v. Jones, 67 Fla. 121, 64 So. 502; Garner v. Towler, 25 Ariz. 101, 213 Pac. 390. (b) Failure to give notice of the hearing on the motion and on the application for default is a denial of due process, in violation of both the State and Federal Constitutions. St. Louis v. Mo. Pac. Ry. Co., 278 Mo. 211, 211 S.W. 671; Barber Asphalt Paving Co. v. Ridge, 169 Mo. 384, 68 S.W. 1043; Ex parte Nelson, 251 Mo. 106, 157 S.W. 794; Scott v. McNeal, 154 U.S. 34, 38 L. Ed. 896; Pennoyer v. Neff, 95 U.S. 733, 24 L. Ed. 565. (4) The motion to stay proceedings was addressed to the sound discretion of the court and appellant could not be adjudged in default until the motion was ruled upon by the court after due notice and opportunity to be heard. Griffin v. Arney, 12 S.W. 95; Steamboat Osprey v. Jenkins, 9 Mo. 635; Anspach v. Jensen, 229 Mo. App. 321, 78 S.W. (2d) 137; Blythe v. Hinckley, 84 Fed. 228; A., T. & S.F. Railroad Co. v. Nicholls, 8 Colo. 188, 6 Pac. 512; Central Deep Creek Orchard Co. v. Taft Co., 34 Idaho, 458, 202 Pac. 1062; Averback v. Spivey, 122 Ga. 18, 49 S.E. 748; Robinson v. Earl Fruit Co., 35 Idaho, 254, 204 Pac. 534; Cobb v. Trammell, 73 Fla. 574, 74 So. 697; Johnson v. City of Sebring, 140 So. 672; Mitchell v. Campbell, 14 Ore. 454, 13 Pac. 190; Chesapeake & O. Ry. Co. v. McCabe, 213 U.S. 207, 53 L. Ed. 765; McAlister v. C. & O. Ry. Co., 157 Fed. 743; Southern Pac. Co. v. Waite, 279 Fed. 172; Sec. 784, R.S. 1929; Paddock v. Somes, 102 Mo. 235, 14 S.W. 746. (5) The service on the chief clerk of the Superintendent of Insurance was invalid because of lack of sufficient averments in the petition to authorize such substituted service. Sec. 5894, R.S. 1929; State ex rel. Am. Central Life Ins. Co. v. Landwehr, 318 Mo. 188, 300 S.W. 294; State ex rel. May Dept. Stores Co. v. Haid, 327 Mo. 567, 38 S.W. (2d) 44: Thornburg v. Bennett & Co., 206 Iowa, 1187, 221 N.W. 840; State ex rel. Palmer v. Gray, 92 Fla. 1123, 11 So. 242; Gage v. Riverside Trust Co., 156 Fed. 1002; Jensen Handmade Silver v. Jensens A/S, 79 Fed. (2d) 142; Jones v. Gould, 149 Fed. 153; State ex rel. Adler v. Ossing, 336 Mo. 386, 79 S.W. (2d) 255; Wright v. Hink, 193 Mo. 130, 91 S.W. 933; Madison County Bank v. Suman's Admr., 79 Mo. 527; Taylor v. Helter, 198 Mo. App. 643, 201 S.W. 618; (6) The recital in the judgment that the appellant appeared will be held to be limited by the actual record which shows only special appearances which conferred no jurisdiction. Special appearances challenging the jurisdiction of the court do not confer jurisdiction over the person of the defendant. Electrolytic Chlorine Co. v. Wallace & Tiernan Co., 328 Mo. 782, 41 S.W. (2d) 1049; Michigan Cen. Railroad Co. v. Mix, 278 U.S. 492, 73 L. Ed. 470; State ex rel. Deems v. Holtcamp, 245 Mo. 671, 151 S.W. 153; Lincoln v. Hilbus, 36 Mo. 149; Pomeroy v. Betts, 31 Mo. 419; Schell v. Leland, 45 Mo. 289. Recital in a judgment of appearance or due service upon the defendant will be controlled by and limited to the actual facts as they appear in the record. 35 C.J. 1195, sec. 126; G.M.A.C. v. Lyman, 229 Mo. App. 455, 78 S.W. (2d) 109; Rhodes v. Koch, 189 Mo. App. 371, 176 S.W. 286; Cloud v. Pierce City, 86 Mo. 357; Norton v. Reed, 253 Mo. 236, 161 S.W. 842; Blodgett v. Shaffer, 94 Mo. 671, 7 S.W. 436; Orchard v. Natl. Exchange Bank, 121 Mo. App. 338, 98 S.W. 824; Higgins v. Beckwith, 102 Mo. 456, 14 S.W. 931; Anspach v. Jansen, 229 Mo. App. 321, 78 S.W. (2d) 137; Woodruff v. Bunker-Culler Lbr. Co., 242 Mo. 381, 146 S.W. 1162; Laney v. Garbee, 105 Mo. 355, 16 S.W. 831.

A.D. Campbell, R.N. Klass, John Campbell and E.M. Jayne for respondents.

(1) There are three, and only three, possible methods of procedure to set aside a judgment rendered at a former term. (a) An action under the statute, Section 1101, Revised Statutes 1929. (b) An action in equity. (c) A motion in the nature of a writ of error coram nobis. Jeude v. Sims, 258 Mo. 37, 166 S.W. 1048; Harrison v. Slaton, 49 S.W. (2d) 31. (2) A motion under the statute will only lie where the matter actually appears upon the record. Sec. 1101, R.S. 1929. This is not an equity action because that must be an independent action. Sims v. Thompson, 291 Mo. 493. This action was a motion in the nature of a writ of error coram nobis; because, (a) It was tried as such below. (b) Evidence was offered which could not have been done if it were a motion under the statute. (c) It could not have been a suit in equity because there was no separate suit. (3) This is an action at law. It has all the attributes of a new suit although it is engrafted on the old suit. Inasmuch as no instructions or declarations of law were asked or given and there were no findings of fact requested and the finding of the trial court was general, this court is concluded by the judgment below in so far as the matter depends upon facts. Baker v. Smith's Estate, 18 S.W. (2d) 147; Sims v. Thompson, 291 Mo. 493, 236 S.W. 876; Forest Lbr. Co. v. Osceola Lead Co., 222 S.W. 398. Coram nobis, or a motion in the nature of such a writ, being bottomed upon the alleged existence of a fact or facts and the trial court having found against such alleged existence of a fact or facts, there can be nothing before the appellate court, absent error in the reception or rejection of testimony, against the rights of the plaintiff, and there being no such complaint in this appeal, there is nothing for this court to review. (4) This being an action in the nature of a writ of error coram nobis, it could only be maintained upon a showing that some fact existed at the time the judgment was rendered which, if known by the court, would have prevented the rendering of the judgment. Even if that fact existed, but if the court still would have had jurisdiction to render the judgment, or in the exercise of its discretion could have rendered the same, after knowing such fact, then coram nobis will not now lie. Degener v. Kelly, 6 S.W. (2d) 998; Fox-Miller Grain Co. v. Stephens, 217 S.W. 994. There was no fact set up in the motion or shown by any evidence which would have prevented the court from rendering the judgment in the cause. Granting every fact claimed, the trial court could still have entered a valid judgment in the matter and so coram nobis will not lie.

BOHLING, C.

Helen M. Crabtree and R.W. Hanna, respondents,...