Crow v. Crow-Humphrey

• Decision Date: 09 July 1934
• Docket Number: 31123
• Citation: 73 S.W.2d 807,335 Mo. 636
• Parties: Edward Gay Crow, by Edward W. Terry, His Guardian, and Alexander Crow, Trustee under the will of Sophie M. Crow, v. Katherine Marchand Crow-Humphrey, Appellant
• Court: Missouri Supreme Court

73 S.W.2d 807

335 Mo. 636

Edward Gay Crow, by Edward W. Terry, His Guardian, and Alexander Crow, Trustee under the will of Sophie M. Crow, v. Katherine Marchand Crow-Humphrey, Appellant

No. 31123

Supreme Court of Missouri

July 9, 1934

Appeal from Circuit Court of City of St. Louis; Hon. Claude O Pearcy, Judge.

Affirmed.

Parker Jackson & Grossenheider and Paul A. Richards for appellant.

(1) It is a fundamental principle of the law that process and judgment go against an insane person, the same as any other and that insanity is a defense, and he must defend by guardian ad litem or attorney. It is also fundamental that insanity of a party at the time of trial is no ground for setting aside the judgment or enjoining its execution, when he has been served with process in the usual manner and has failed to make a defense. Heard v. Sack, 81 Mo. 610; Gibson v. Pollock, 179 Mo.App. 188, 166 S.W. 874; Graves v. Graves, 255 Mo. 468, 164 S.W. 500; 32 C. J. 770; Lissner v. State Mortgage Corp., 29 S.W.2d 852; Farmers & Merchants Bank v. Duke, 122 S.E. 1; Montague v. Cherokee County, 205 N.W. 228. (2) Fraud in the procurement of a judgment against a sane or insane person is grounds upon which it may be set aside or its execution enjoined. But fraud in the procurement does not mean fraud in the cause of action itself, in false allegations or false testimony, but means such fraud as hindered or prevented him, by some act of plaintiff, from making such defense; it means fraud arising on extrinsic matter, whereby he or the court was tricked by some act of the plaintiff. Lieber v. Lieber, 239 Mo. 1, 143 S.W. 467; Murphy v. De France, 101 Mo. 157, 13 S.W. 757; United States v. Throckmorton, 98 U.S. 61; Cantwell v. Johnson, 236 Mo. 575, 139 S.W. 374. (3) Where fraud is the ground for equitable relief against a judgment, plaintiff must come into court with a cause unmixed with his own negligence or fault. Equity will only interfere in such case where elements of good conscience and reasonable diligence are shown after discovery of the fraud, and where the heirs of an insane person not under guardianship have knowledge of a suit and judgment against an insane person, they are under legal obligations to protect his legal rights, and, if they fail, neither the insane person nor his heirs can have relief in equity. There must be a further showing that a meritorious defense would have been made and that a different result probably be reached. 19 C. J. 170, sec. 423; Richeson v. Simmons, 47 Mo. 20; Montague v. Cherokee County, 205 N.W. 228; McElrath v. McElrath, 139 N.W. 708, 44 L. R. A. (N. S.) 505; Bennett v. Terry, 299 S.W. 147; Cantwell v. Johnson, 139 S.W. 374; Lissner v. State Mortgage Corp. 29 S.W.2d 852; Farmers & Merchants Bank v. Duke, 122 S.E. 1; White v. Crow, 110 U.S. 183, 28 L.Ed. 113. (4) Where a judgment is rendered against an insane person, and the proceedings do not show the fact of his insanity, the remedy is to have the judgment set aside by writ of error coram nobis, to which writs the Statutes of Limitation do not apply. Plaintiff, therefore, has an adequate legal remedy. Gibson v. Pollock, 179 Mo.App. 188, 166 S.W. 874; Scott v. Rees, 253 S.W. 998; State v. Wallace, 209 Mo. 358, 108 S.W. 542; Heard v. Sack, 81 Mo. 610; Mefford v. Mefford, 26 S.W.2d 804. (5) An attempt to enjoin the collection of the judgment for alimony is not a direct attack upon the judgment in the case, but a collateral attack, since the primary element of a divorce judgment is the dissolution of the bonds of matrimony and not the settlement of the property rights. Butler v. Butler, 252 S.W. 734; McIntire v. McIntire, 80 Mo. 470; De Graw v. De Graw, 7 Mo.App. 121; Doyle v. Doyle, 26 Mo. 545; McCraney v. McCraney, 5 Iowa, 232, 68 Am. Dec. 702, 19 C. J. 173, sec. 432.

Goodbar & Gilster, Thomas P. Moore, Charles M. Hay and George F. Heege for respondents.

(1) Where judgment is entered against an insane person, it is voidable unless the insane person were properly defended by guardian ad litem, or next friend, and the judgment may be set aside or the execution thereof restrained upon a proper showing. Heard v. Sack, 81 Mo. 610; Graves v. Graves, 255 Mo. 468; Dorrance v. Dorrance, 242 Mo. 625; Gibson v. Pollock, 179 Mo.App. 188. (2) The fraud upon which this suit was based was a fraud whereby the court was tricked into giving judgment against an insane person who not only was thereby prevented from making a defense, but who could have set up his insanity as a defense to the charges brought against him in the suit upon which the judgment was entered. It was fraud in the procurement of the judgment and not in the course of the litigation. Lieber v. Lieber, 239 Mo. 1; Bethel v. Bethel, 181 Mo.App. 601; Audrain County v. Muir, 249 S.W. 383. (3) While in attacking a judgment upon the ground of fraud a plaintiff must come into court with clean bands, as he must in other proceedings in equity, and the defense of laches can be made against him, such defense can only be made where in equity and good conscience he should have acted before he did, or where some person upon whom a legal duty to represent him should have so acted. In the case at bar no laches could be raised against the insane plaintiff; nor was he at any time represented by anyone whose failure to act might be imputed to him. In order to make a showing of a meritorious defense to the judgment complained of, the plaintiff was not required to prove that he would have won the suit whereon it was founded; he need only show that he had a defense which tendered a litigable issue of which he could have availed himself. This requirement plaintiff met. 34 C. J. 442; Hess v. Fox, 140 Mo.App. 437; Sauer v. Kansas City, 89 Mo. 46. (4) The writ of error coram nobis does not in this case afford the plaintiff a complete and adequate remedy at law. 21 C. J., pp. 53, 107; Hanson v. Neal, 215 Mo. 256; Graves v. Graves, 255 Mo. 468; Hartman v. Hartman, 154 Mo.App. 243; Sec. 1360, R. S. 1929; Mefford v. Mefford, 26 S.W.2d 604. (5) A suit to enjoin the enforcement of a judgment by execution is a direct and not a collateral attempt thereof, and is in the same category as a suit to set the judgment aside. Schneider v. Schneider, 273 S.W. 1081; Smoot v. Judd, 161 Mo. 673.

Cooley, C. Westhues and Fitzsimmons, CC., concur.

OPINION

COOLEY

This case, which comes to the writer on reassignment, is a suit in equity to enjoin the enforcement of a judgment for alimony. Plaintiffs prevailed below and the defendant appealed. Edward Gay Crow is a person of unsound mind. Alexander Crow is his son by his first marriage, to whom Sophie M. Crow, mother of Edward, bequeathed certain property in trust for Edward. No question is raised as to the propriety of joining said trustee as coplaintiff in this action.

Plaintiff's evidence tended to show that about 1905 or 1906 and prior thereto, Edward Gay Crow was a young man of considerable promise, a total abstainer from alcoholic drinks, prominent in church work, neat, in fact rather meticulous, in dress. He had no property but was entrusted with the management of the business affairs of his mother, Sophie M. Crow, who appears to have been a woman of considerable wealth, and with the management of some business matters for other relatives. These business affairs he seems to have managed satisfactorily to the owners. He was married and had three children. About 1905 Mr. Olian, an intimate friend and associate who had known him from boyhood, began to notice peculiarities in his manner and conduct that led him to think Crow's mind was becoming diseased. He spoke to Crow's mother and his then wife about it. At about that time Crow began drinking and according to Mr. Olian from that time on his mental condition grew progressively worse. In 1906 his first wife divorced him, being granted custody of the children and monthly alimony, which Sophie M. Crow paid. Also about 1906 Sophie M. Crow took the management of her business affairs from her son and entrusted it to Olian, arranging with the latter to pay Edward, who then had no property or income and no occupation, a monthly allowance.

Edward married Katherine Marchand, defendant in this action, February 24, 1909, and they lived together until August 29, 1912, when they separated and never thereafter lived together. Shortly prior to this marriage Edward informed his friend Olian that he was going to get married and Olian advised against it, telling Edward his mother might cut off his allowance. Edward replied that she could not do that, as he "had a birthright." Mrs. Crow did cut off the allowance for a time but later restored it. By this time Edward had got to drinking excessively and had become or was becoming slovenly in his habits and in Olian's opinion was showing increasing signs of mental aberration. Olian detailed various incidents tending to show abnormality that occurred during the three and a half years Edward and Katherine lived together, which we think it unnecessary to detail.

About August 11, 1912, defendant Katherine filed in the Probate Court of St. Louis an application, verified by her, praying the appointment of a guardian for said Edward, alleging that he "is so addicted to habitual drunkenness and the intemperate use of alcoholic stimulants as to be incapable of managing his affairs; that his habits as to the use of said liquors are such that he is a constant menace to the personal safety of himself, of your petitioner and of other persons; that he is entirely incapable of managing his affairs or properly taking care of his person and property. Your petitioner further states that the said Edward G. Crow is so far disordered in his mind as to endanger his own person and the person and property of your petitioner and of others." ...