Craig v. Smith

• Decision Date: 31 October 1877
• Citation: 65 Mo. 536
• Parties: CRAIG ET AL. v. SMITH ET AL., APPELLANTS.
• Court: Missouri Supreme Court

65 Mo. 536

CRAIG ET AL.

v.SMITH ET AL., APPELLANTS.

Supreme Court of Missouri.

October Term, 1877.

Appeal from Buchanan Circuit Court.--HON. JOS. P. GRUBB, Judge.

L. E. Carter for appellant.

The motion to vacate the judgment was the proper proceeding and should have been sustained, and the record thereby cured of its falsity. Wag. Stat. vol. 2, p. 1062 § 26, p. 1034 § 6, p. 1037 § 23; 2 Tidds Practice, 1191, 1136. Powell v. Gott, 13 Mo. 458; Gott v. Powell, 41 Mo. 416; Downing v. Still, 43 Mo. 309; Ex-parte Toney, 11 Mo. 663; De Laney v. Brownell, 4 Johnson 136; Denton v. Noyes, 6 Johnson 295; Critchfield v. Porter, 3 Ohio 518; Warren v. Lusk, 16 Mo. 102; Byelow v. Saunders, 22 Barb. 147; Kasson v. Mills, 8 Howard Pr. R. 377; Beebe v. Roberts, 3 E. D. Smith 195; Williams v. Wheeler, 8 Abbott 116.

J. D. Strong for respondent.

No point is made as to the mode adopted by appellant, whether by motion or bill in equity; therefore the cases cited by him are wholly irrelevant. The court, at hearing of the motion, sat as a jury to try a question of fact and found that appellant did appear by attorney. The pleadings showed appearance by appellant. If there had been no appearance, the judgment would have been erroneous. This court will not interfere with the discretion exercised by the court below in refusing to vacate its solemn judgment, unless it can clearly see that the discretion has been been abused. Christy's Admr. v. Myers, 21 Mo. 112; Pomeroy v. Betts, 31 Mo. 419; Cov. Mut. Life Ins. Co. v. Clover, 36 Mo. 392.

NORTON, J.

At the September term, 1874, of the Buchanan Circuit Court, plaintiffs dismissed their suit as to defendant Howard, and took judgment against Smith and Van Camp for $838.85. At the July term, 1875, of said court, defendant Van Camp filed his motion to vacate and set aside said judgment, because at the time of its rendition, the said court had no jurisdiction of the person of the said Van Camp. This motion was overruled, and to correct the alleged error of the trial court in this respect, defendant has appealed to this court. In support of his motion defendant offered in evidence the following return of the sheriff, viz: “Served the within writ and petition by delivering a copy of each to S. M. Howard, and by delivering a copy of the writ to Wm. H. Smith; A. W. Van Camp not found in Buchanan county, Missouri. May 29, 1869.” In further support of the motion, defendant offered the evidence of T. A. Green and H. M. Vories to the effect, that they were attorneys for defendants Smith and Howard, that an answer was prepared and filed by Green for the defendants, without specifying which of the defendants he represented; that neither Green nor Vories had ever been employed by Van Camp or authorized to file answer or enter appearance for him, and that, in point of fact, they never did file an answer for him or enter his appearance.

The motion to vacate and set aside the judgment for the alleged irregularity or error in fact in the rendition of it, may be regarded as in the nature of a writ of error coram nobis, or as warranted under the provision of our statute authorizing a motion for that purpose to be filed within three years after such judgment...