Cross v. Gould

• Decision Date: 12 May 1908
• Citation: 110 S.W. 672,131 Mo.App. 585
• Parties: CROSS et al., Respondents, v. GOULD et al., Appellants
• Court: Missouri Court of Appeals

110 S.W. 672

131 Mo.App. 585

CROSS et al., Respondents, v. GOULD et al., Appellants

Court of Appeals of Missouri, St. Louis

May 12, 1908

Appeal from Shelby Circuit Court.--Hon. Nat. M. Shelton, Judge.

REVERSED AND REMANDED (with directions).

Reversed and remanded.

George B. Gould for appellants.

(1) It is the duty of a court to correct its record at any time it discovers the defects, and may do so at the instance of any person interested, or of its own motion. Van Fleet, Coll Attack, ch. 20, part 11; Estate of Cook, 77 Cal. 220; 11 Am St. 267. As to such facts, there is or can be no issue. When a court, in rendering a judgment, goes outside of and beyond the case made, and assumes to pass upon matters not in issue and makes findings not only upon matters concerning which no issue was tendered, but which are also contrary to and inconsistent with express allegations in the plaintiffs' petition, such judgment is not only erroneous, but irregular and void, and subject to collateral attack. Hume v. Robinson, 23 Colo. 361; Munday v. Vail, 34 N. J. L. 418; Smith v. Transfer Co., 92 Mo.App. 41; Paddock v. Lance, 94 Mo. 283; White v. Rush, 58 Mo. 105; Janey v. Spedden, 38 Mo. 395; Boogher v. Frazer, 99 Mo. 325; Reynolds v. Stockton, 940 U.S. 254. (2) If an attempt was made to get relief based or grounded upon this decree, fraud in its procurement, when shown, would be a complete defense. Marx v. Fore, 51 Mo. 69; Word v. Quinlevin, 57 Mo. 425; Wonderly v. Lafayette Co., 150 Mo. 635. (3) Motion at a subsequent term is proper procedure and now commonly used to take the place of writs of error coram nobis and audita querela, to vacate on account of some matter of fact not appearing on the record, and this, too, even though the judgment is apparently regular, and it is sought to set aside the judgment or decree for something which can only be shown by matters outside the record, time not limited except for irregularity. Fisher v. Fisher, 114 Mo.App. 628; James and Ray Ex parte, 59 Mo. 280; Latshaw v. McNess, 50 Mo. 381; State ex rel. v. Heinrich, Ch. 14 Mo.App. 146; Powell v. Gott, 13 Mo. 458; In re Toney, ex parte, 11 Mo. 661; Ex parte Page, 49 Mo. 294. Court had not the authority, and its judgment was not only irregular, but void. Dubois v. Clark, 12 Colo.App. 228; Ex parte Gray, 77 Mo. 160; Dowing v. Still, 43 Mo. 309; Pockman v. Meatt, 49 Mo. 345. One is not estopped when there has been fraud. Hirsh v. Weisberger, 44 Mo.App. 506; Strum v. School District, 45 Minn. 88. As between the parties it is different than when the rights of third persons are involved. Gott v. Powell, 41 Mo. 416. (4) Motions lie in law courts and law cases, as well as in equity and equity cases. Formerly by writs of error, coram nobis and audita querela, but now by motion and fraud, is one of the grounds for which it lies. Stanfford v. Barry, 1 Atkins, 321, 15 Am. Dec. 692, and note; Allen v. Maclellan, 12 Pa. St. 328; 51 Am. Dec. 608; Dial v. Farrow, 1 McMull 292, 36 Am. Dec. 267; Benson v. Vernon, 3 Bro. Parl. 629; Dugan v. Scott, 37 Mo.App. 663; Neenan v. Scott of St. Joseph, 126 Mo. 89; Ex parte Gray, 77 Mo. 161; Stickney v. Davis, 17 Pick. 169; Note to Collins v. State, 97 Am. St. 370; 1 Black on Judgments, ch. 14, secs. 299, 300; Vandenburg v. Mayor, etc., of New York City, 57 N.Y. 285; Richardson v. Richardson, 67 N.J.Eq. 437; State v. Calhoun, 50 Kan. 623; Sanders v. State, 85 Ind. 318, 44 Am. Rep. 29; Larson v. Williams, 100 Iowa 110, 62 Am. St. 544; Whereat v. Ellis, 70 Wis. 207, 5 Am. St. 164; Morrill v. Morrill, 20 Ore. 96, 23 Am. St. 95, and note and cases cited; Hinkling v. Allen, 15 F. 196; Strom v. School Dist., 45 Minn. 88.

V. L. Drain and Dysart & Mitchell for respondents.

If the judgment is attacked and sought to be set aside for matters aliunde or dehors the record, such as fraud, mistake or imposition, it can only be assailed, vacated and set aside by a bill in equity. Heffernan v. Ragsdale, 199 Mo. 376; Davis v. Robinson, 102 S.W. 1048; Phillips v. Evans, 64 Mo. 23.

NORTONI, J. Bland, P. J., and Goode, J., concur.

OPINION

NORTONI, J.

--In this proceeding, the immediate relief sought is to set aside a judgment on motion filed at a subsequent term. Although defendants appeared to the action, they failed to appear at the term at which the judgment was given against them. They also failed to file motions for new trial or in arrest. They did appear, however, at a subsequent term of the court and filed a motion to set aside and vacate the judgment mentioned. This motion was stricken from the files by the court on motion of plaintiff and the court having declined to reconsider its action, on appropriate motion for review, defendants appealed from the adverse ruling by which the motion to vacate the judgment was stricken from the files. There are several questions which essentially arise on the record and they are somewhat involved. To the end therefore, that a complete understanding of their relationship may be had, a comprehensive statement of the proceedings will be given.

On April 30, 1903, plaintiffs filed their bill in the circuit court, stating substantially, among other things, that defendants owned a certain farm in Shelby county and had theretofore borrowed from the State Savings Loan and Trust Company of Quincy, Illinois, two thousand dollars, for which they executed their note, together with a deed of trust on said farm, to secure the payment thereof, which deed of trust was a valid and existing lien thereon; that one Nailen afterwards claimed to have purchased such lands from defendants and exhibited a deed in proper form purporting to have been executed by defendants conveying said lands to him; that plaintiffs, desiring to purchase said lands, caused the records of said county to be examined and procured an abstract of title thereto, and it appearing therefrom that said Nailen was the owner thereof, subject to said deed of trust, they purchased the same from said Nailen and paid the full purchase price of $ 7,200 in cash to him therefor, except plaintiffs retained the sum of $ 2,100, being the amount of defendants' said note and the then accrued interest thereon, secured by said deed of trust outstanding against said lands; that plaintiffs, not as volunteers, however, but believing in good faith that they had acquired title to said lands from the lawful owner thereof, caused the said note of said defendants, secured by said deed of trust, to be paid off and the said deed of trust to be cancelled on the records of said county, and also paid off and discharged $ 20 taxes then accrued and existing as a lien on said lands; that afterwards the defendants claimed to own such lands and denounced the deed held and exhibited by said Nailen purporting to be executed by them to said Nailen, as a forgery, wherefore it appeared that plaintiffs, while acting in the utmost good faith, had received no title to said lands and were about to be defeated of the amount of incumbrances represented by the deed of trust and taxes on said land theretofore paid off by them as stated. The bill prayed substantially that plaintiffs be subrogated to the rights of those holding the original liens securing such note, etc.; that if plaintiffs had no title to the lands, they be decreed the owners of the defendants' note and the taxbill paid under the circumstances stated, and prayed the court that after so declaring, the lien of the said incumbrances mentioned be revived and re-established, and to declare the plaintiffs of right ought to be and are subrogated to all of the rights of the said original lienors, etc., and the amount of said incumbrances being then due, the plaintiffs be given judgment against the defendants therefor, etc. During the April term, on April 4, 1904, nearly one year after the filing of the suit, the record discloses the defendants appeared and filed a motion striking at the sufficiency of the bill. The court considered this motion as a general demurrer, and so adjudged, it was overruled when the cause came on for trial.

It next appears from the record that on May 30, 1904, at the April adjourned term of the court, the cause came on to be heard that the plaintiff appeared and announced ready for trial; that defendants were duly called and appeared not, "but made default, after having by demurrer appeared to the action;" that the demurrer was seen, considered and overruled by the court and the cause submitted to the court upon the pleadings and the evidence. It appears from this decree that the court found all the facts as stated in plaintiffs' bill and decreed to the plaintiffs all of the relief prayed for therein. Neither a motion for new trial nor in arrest of judgment was filed. The court adjourned for the term, and it next appears that at the April term, 1905, defendants appeared by counsel and moved the court to make certain corrections in the judgment nunc pro tunc. This motion was considered by the court, and at the October term, 1905, sustained and the judgment corrected nunc pro tunc as prayed for by defendants' counsel. In this connection, the record also shows that defendants' counsel prepared and presented to the court a copy of the decree which defendants considered a proper form of entry nunc pro tunc, and that the court, at his instance and request, adopted the same and ordered it spread upon the record as the decree of the court, which was done. The decree, as amended nunc pro tunc, awarded to the plaintiffs the same relief as that given by the original decree. It included some other matters, however, favorable to the defendants, such as finding and declaring that the deed from Nailen to plaintiffs was a forgery, and that, as between the present plaintiffs and defendants, the title to the lands remained in defendan...