Fears v. Riley

• Decision Date: 08 December 1898
• Citation: 49 S.W. 836,148 Mo. 49
• Court: Missouri Supreme Court
• Parties: FEARS v. RILEY et al.<SMALL><SUP>1</SUP></SMALL>

49 S.W. 836

148 Mo. 49

FEARS v. RILEY et al.¹

Supreme Court of Missouri, Division No. 1.

December 8, 1898.

JUDGMENTS — EQUITABLE RELIEF — FRAUD — PLEADING — AMENDMENTS — VENUE — TORTS — INFANTS.

1. In order to set aside a judgment for fraud, even in a direct proceeding, it must appear that the fraud was practiced in the very act of obtaining the judgment.

2. A false allegation by plaintiff as to her residence is not ground for setting aside the judgment for fraud.

3. The joining of a defendant merely for jurisdictional purposes, where not a fraud on the court, is not ground for setting aside a judgment for fraud.

4. An infant is liable in tort for circulating a libel.

5. The bringing of defendants to a county under a criminal warrant, in order to have them there served with civil process, is not a fraud on the court, so as to authorize the setting aside of the judgment for fraud.

6. At any event, their co-defendants cannot so contend.

7. Taking a judgment while a motion for security for costs was pending is not a fraud on the court so as to authorize the setting aside of the judgment, since the court takes judicial notice of the status of a case as shown by its own records.

8. The fact that the attorney for a defendant did not file an answer because of his erroneous opinion that such defendant was not obliged to answer until the alias summons was served on him, and that such defendant relied on the advice, does not authorize equity to set aside the judgment.

9. It does not sustain a claim that the judgment was procured by fraud.

10. Rev. St. 1889, § 2264, requires that all pleadings shall be filed and issues made up before the venue is changed, except that after change of venue any pleading found insufficient, on demurrer or otherwise, may be amended as in other cases. Section 2099 provides that new parties may be brought in by an

amendment to the petition. Section 2102 provides that a petition may be amended as a matter of course, without costs, and without prejudice to the proceeding already had, at any time before the answer is filed. Section 2271 gives to the court to which the venue is changed jurisdiction to hear and determine the cause. Held that, after defendants have obtained a change of venue, the complaint may be amended by adding a new party defendant.

11. Where part of defendants are granted a change of venue on their motion, the case against all the defendants is removed.

Appeal from circuit court, Audrain county; John A. Hockaday, Judge.

Suit by John C. Fears against Laura Riley and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Injunction to annul a judgment and to restrain its enforcement. On the 18th of December, 1890, Laura Riley, a resident of Audrain county, filed a suit, in the circuit court of Audrain county, against Tobe Lee, a minor, H. L. Preston, and I. H. Laveene, claiming $10,000 damages against defendants for publishing in the Kansas City Sunday Sun, and circulating, a libel concerning her. The defendants were served with process, appeared, and pleaded. A guardian ad litem was appointed for Lee, the minor, and he filed a general denial. On June 10, 1891, defendants Preston and Laveene filed an answer, which was — First, a general denial; and, second, mitigating circumstances; and on the same day filed a motion for security for costs. On June 1, 1891, defendants Preston and Laveene filed a motion for change of venue, which was granted on June 17th, and the cause sent to Randolph county circuit court, at Moberly. At the September term, 1891, of the Randolph circuit court, the cause was continued by consent. At the February term of said Randolph circuit court, to wit, on February 1, 1892, plaintiff filed an amended petition, bringing in John C. Fears, George Bilbro, George C. McGuigan, and R. C. Nourse as co-defendants. On February 23, 1892, an alias summons, with a copy of the amended petition attached, was issued by the Randolph circuit court against John C. Fears, directed to the sheriff of the city of St. Louis, returnable to the September term, 1892, and the cause was continued to the September term, 1892. This summons was served on Fears, personally, in St. Louis, on the 24th of February, 1892. At the opening of the September term, 1892, the sheriff had not returned the summons to Fears, and an order was entered directing the clerk to issue an alias summons for Fears, and the cause was continued to the February term, 1893. Later, during the September term, 1892, to wit, about September 26, 1892, the sheriff of the city of St. Louis returned the summons against Fears, duly served; and thereupon the plaintiff directed the clerk of the Randolph circuit court not to proceed with the order for an alias summons to Fears. At the February term, 1893, the cause was continued to the September term, 1893, and at that term it was continued to the February term, 1894. At the last-named term plaintiff dismissed the cause as to Tobe Lee, George Bilbro, George C. McGuigan, and R. C. Nourse; took judgment by default against H. L. Preston, I. H. Laveene, and John C. Fears; and, upon inquiry, her damages were assessed at $10,000. Afterwards an execution was issued against Fears, directed to the sheriff of the city of St. Louis, who was proceeding to levy under it, when Fears instituted this action in the circuit court of Randolph county, making Laura Riley, George Robertson, her attorney, J. R. Lowell, clerk of the circuit court of Randolph county, and Patrick M. Stead, sheriff of the city of St. Louis, defendants. The petition alleges the institution of the libel suit in Audrain county, and states "that, in order to cause the circuit court of Audrain county to exercise jurisdiction in said action, said Laura Riley, fraudulently and by means of false representation, imposed upon the court," in this: (1) She alleged residence in Audrain county, when in fact she resided in St. Louis. (2) She made Tobe Lee, a minor child, who was a resident of Audrain county, a party defendant, for the fraudulent purpose of obtaining jurisdiction in Audrain county. (3) She imposed on the court by fraudulently using its criminal process to arrest Preston and Laveene in Kansas City under a warrant for criminal libel, bringing them to Audrain county, and, while thus there, having them served with summons in the civil suit. (4) That after the change of venue to Randolph county the plaintiff filed an amended petition, enlarged her claim for damages to $25,000, and brought in new defendants, "well knowing that said Tobe Lee was not liable thereon, but was made a party solely for the fraudulent purpose of deceiving the court, and inducing it to continue to exercise jurisdiction, as she afterwards, to wit, on February 8, 1894, voluntarily dismissed her said action as to Tobe Lee," and at the same time obtained judgment against the other defendants. (5) That the judgment was unauthorized and premature, because there was a motion for security for costs pending and undisposed of, and no default could therefore legally be granted. (6) That Fears filed no answer in the libel case, because he relied on the advice of his counsel that the order for an alias summons against him superseded the summons that had been served on him in February, 1892, and that he was waiting to be served with the alias summons. (7) That he has a good defense to the libel suit, and that the court heard no evidence on the trial thereof tending to connect him with, or make him liable for, the libel. The prayer of the petition is that the judgment be adjudged null and void, and the defendants be enjoined from enforcing it. The answer denied the allegations of fraud, and asserted the validity of the judgment. The circuit court heard the evidence, to which all necessary reference will hereafter be made in the course of this opinion, and entered judgment for defendants. Plaintiff appeals.

R. F. Walker, Harry L. Strohm, and Martin & Terrill, for appellant. A. H. Waller, F. P. Wiley, and Geo. S. Grover, for respondents.

MARSHALL, J. (after stating the facts).

1. It is the settled law in our state that, in order to set aside a judgment for fraud, even in a direct proceeding, it must appear that fraud was practiced in the very act of obtaining the judgment. Lewis v. Williams, 54 Mo. 200. It is not enough that there was fraud in the cause of action on which the judgment is founded, and which could have been interposed as a defense, unless its interposition was prevented as a defense by fraud. Payne v. O'Shea, 84 Mo. 129; Murphy v. De France, 105 Mo. 53, 15 S. W. 949, and 16 S. W. 861; Oxley Stave Co. v. Butler Co., 121 Mo. 614, 26 S. W. 367. The judgment must be concocted in fraud, and the fraud must be actual fraud as contradistinguished from a judgment obtained on false evidence. Moody v. Peyton, 135 Mo. 482, 36 S. W. 621. These principles and these cases have lately been reviewed and approved by this court in Hamilton v. McLean, 139 Mo. 678, 41 S. W. 224, and in Bates v. Hamilton, 144 Mo. 1, 45 S. W. 641.

Apply these tests to the allegations of the petition, and we have this result: It may have been false that Laura Riley was a resident of Audrain county, but that was a fact to be tried in that case, which was open to denial and contest by the defendant, and no more devests the court of jurisdiction, or renders its judgment void on the ground of fraud, than any other fact falsely asserted or testified...