Gibson v. Enright

• Court: Kansas Supreme Court
• Writing for the Court: DAWSON, Justice.
• Citation: Gibson v. Enright, 140 Kan. 700, 37 P.2d 1017 (Kan. 1934)
• Decision Date: 08 December 1934
• Docket Number: 31927.
• Parties: GIBSON v. ENRIGHT.

37 P.2d 1017

140 Kan. 700

GIBSON v. ENRIGHT.

No. 31927.

Supreme Court of Kansas

December 8, 1934

Syllabus by the Court.

Writ of error coram nobis will not issue in civil action where litigants' rights are open to redress regulated by statute, nor will its issue be sanctioned as additional ground for vacating judgment to those specified in statute (Rev. St. 1923, 60--702, 60--3001, 60--3005, 60--3822 60--3825).

Writ coram nobis could not be used to vitiate judgment, affirmed by Supreme Court, which vacated prior judgment on ground that judgment debtor had not been personally served with summons notwithstanding application for writ was based on ground that original summons which had been mislaid had been discovered and showed personal service.

A writ of error coram nobis will not issue in a civil action where the rights of a litigant are open to redress or otherwise regulated by the Code of Civil Procedure; nor will its issue be sanctioned as an additional ground for vacating a judgment to those specified and enumerated in the pertinent provisions of the Civil Code.

Appeal from District Court, Wyandotte County, Division No. 1; Edward L. Fischer, Judge.

Action by F. A. Gibson against E. A. Enright, wherein defendant after judgment for plaintiff had been affirmed by the Supreme Court, filed application for writ of coram nobis. From a judgment denying the application, defendant appeals.

H. S. Roberts and E. A. Enright, both of Kansas City, for appellant.

J. E. McFadden and O. Q. Claflin, both of Kansas City, for appellee.

DAWSON Justice.

This is an appeal from a ruling of the district court of Wyandotte county denying and dismissing appellant's application for a writ coram nobis to set aside a judgment.

The pertinent facts in summary were these: In 1925 this appellant, E. A. Enright, filed an action for money against this appellee, F. A. Gibson. The cause was permitted to sleep on the docket without answer or other plea by Gibson until September 19, 1926, at which time judgment was entered in favor of Enright. On January 19, 1929, execution was issued on the judgment and returned with the indorsement "No property found." Successive executions issued in June, 1929, and October, 1930, were similarly ineffective.

On December 13, 1930, Gibson commenced an action to enjoin the sheriff and Enright from serving further execution and to set aside the judgment entered against him on September 19, 1926, on the alleged ground that he had not been personally served with summons. On March 17, 1931, judgment was entered in favor of Gibson as prayed for. The cause was appealed to this court, and on April 9, 1932, the judgment was affirmed. Gibson v. Enright, 135 Kan. 181, 9 P.2d 971.

Some 15 months later, on July 11, 1933, Enright filed in the district court an application for a writ coram nobis to set aside the judgment of March 17, 1931 (affirmed by this court as above), on the ground that the original summons in the action of Enright v. Gibson filed in 1925, and which had been mislaid so that it could not be produced in the injunction suit of Gibson v. Enright filed in 1930, had been discovered, and that the sheriff's return thereon bore a recital that it had been personally served on Gibson, and in consequence that the secondary evidence which had constrained the trial court's conclusion of fact that personal service had not been made on Gibson was incorrect. The application concluded, in part, thus: "That there is no remedy available to your petitioner at this time to this miscarriage of justice and destruction of his legal rights except a bill of review sanctioned by the common law of the writ coram nobis which he invokes."

Counsel for Gibson filed a motion to strike the application from the files.

The matter came on for hearing on October 7, 1933; and the judgment roll, in part, reads:

"Upon full hearing by the court of the arguments of counsel for both parties *** the court finds that the application of said defendant for writ coram nobis should be denied, and the court also finds that the motion of plaintiff to strike said application from the files should be sustained."

Judgment was entered accordingly, and the matter is brought here for review.

At the outset the obvious inquiry intrudes: Is the common-law writ of error coram nobis impliedly included in or consistent with the Code of Civil Procedure in this state? In a single instance it has been successfully invoked in a criminal case and the trial court's allowance of the writ affirmed. State v. Calhoun, 50 Kan. 523, 32 P. 38, 18 L.R.A. 838, and note, 34 Am.St.Rep. 141. In other criminal cases an application for the writ was tolerantly considered but invariably denied. Asbell v. State, 62 Kan. 209, 61 P. 690; Dobbs v. State, 62 Kan. 108, 61 P. 408; Dobbs v. State, 63 Kan. 321, 65 P. 658; Collins v. State, 66 Kan. 201, 71 P. 251, 252, 60 L.R.A. 572, 97 Am.St.Rep. 361; Hamlin v. State, 67 Kan. 724, 74 P. 242; State v. Choquette, 109 Kan. 780, 202 P. 68; State v. Ray, 111 Kan. 350, 207 P. 192.

No instance of its use in a civil case can be found in the 140 volumes of our reports, although in the criminal cases above cited this court discussed the writ as if it was not entirely obsolete under our procedure, but that its ancient use when it was one of the prerogative writs of the King's Bench had necessarily been curtailed and largely superseded by the statute which prescribes our Code of Criminal Procedure.

In our Code of Civil Procedure it would seem that every plight which could be relieved through the invocation of a writ of error coram nobis can be quite as effectively treated under familiar provisions of the Civil Code--by motion for a new trial on the statutory grounds (R. S. 60--3001), or by a petition for a new trial if the time to file a motion for a new trial has elapsed (R. S. 60--3005). Moreover, the Civil Code specifically declares: "The rules of pleading heretofore existing in civil actions are abolished; and hereafter the forms of pleadings in civil actions in courts of record, and the rules by which their sufficiency may be determined, are those prescribed by this code." R. S. 60--702.

The Supreme Court is authorized to revise rules of civil practice to supplement the Civil Code, but any such further rules must be consistent with those which the Legislature itself has prescribed. R. S. 60--3825; Carnine v. Bacon, 131 Kan. 643, 647, 648, 293 P. 392; Hamilton v. Bernstein, 133 Kan. 229, 299 P. 581. As remarked by Chief Justice Doster, in Collins v. State, supra, "We cannot invent forms of procedure to relieve unfortunate suitors"; and it ought not to be difficult to understand that, when the Code prescribes the grounds for a new trial, either on motion or on petition, those grounds are exclusive, and litigants seeking relief from a judgment must bring themselves within the provisions of the Code; otherwise the judgment must stand. Where the Civil Code enumerates nine specific grounds on which a judgment may be vacated, those nine grounds are exclusive, and the mode of relief is likewise exclusive. We could not add a tenth ground, as would result if appellant's application for the writ of error coram nobis were allowed. "Expressio unius est alterius exclusio." Our practice will not permit a litigant to shut his eyes to the plain and pertinent provisions of the Code of Civil Procedure and substitute therefor the common-law writ coram nobis or any other writ of error which has never been countenanced in the civil practice in the seventy-three years' judicial history of this state. We note that in the single instance, State v. Calhoun, supra, where coram nobis was allowed to...