Graff v. Dougherty

• Decision Date: 22 June 1909
• Parties: GRAFF v. DOUGHERTY.
• Court: Missouri Court of Appeals

120 S.W. 661

139 Mo. App. 56

GRAFF v. DOUGHERTY.

St. Louis Court of Appeals. Missouri,

June 22, 1909.

Rehearing Denied July 6, 1909.

1. JUSTICES OF THE PEACE (§ 122)—DEFAULT JUDGMENT — SETTING ASIDE — GROUNDS — FRAUD.

A plaintiff in justice's court who fraudulently represented to the justice that defendant was a nonresident and thereby procured the justice to issue notice and to proceed against defendant as a nonresident, though in fact he was a resident, and obtained default judgment against him, was guilty of fraud, authorizing the court to set aside the judgment.

2. PLEADING (§ 189)—DEMURRER—OFFICE.

A demurrer is a pleading under the law, and it does not lie to challenge the sufficiency of a mere motion.

3. JUDGMENT (§ 338) — SETTING ASIDE — FRAUD—REMEDIES.

A motion lies to set aside a judgment procured by fraud, though a bill in equity or a writ of error coram nobis also lies.

4. APPEAL AND ERROR (§ 544)—"RECORD"— NECESSITY OF BILL OF EXCEPTIONS.

A motion to set aside a judgment on the ground that it was procured by fraud and to recall an execution is not a pleading nor any part of the record proper, which consists of the petition, summons, and all subsequent pleadings, including the verdict and judgment, and the ruling on the motion is a matter of exception only, and, unless the motion is preserved in a bill of exceptions and an exception is saved to the ruling, the matter is not reviewable on appeal.

5. APPEAL AND ERROR (§ 296)—NECESSITY OF MOTION FOR NEW TRIAL.

A motion for a new trial is not a prerequisite to review the ruling on a motion filed after judgment to set aside the judgment and recall an execution.

Appeal from St. Louis Circuit Court; Robert M. Foster, Judge.

Action by Bernard M. Graff against William J. Dougherty. From a judgment denying a motion to set aside a judgment for plaintiff and recall an execution, defendant appeals. Affirmed.

E. P. Johnson, for appellant. Jamison & Thomas, for respondent.

NORTONI, J.

This appeal is from a ruling of the circuit court on a motion to set aside a judgment and recall an execution. It appears plaintiff instituted his suit against defendant in the justice of the peace court of the city of St. Louis. The defendant was personally served by writ of summons and appeared to the action. He filed his application for, and was granted, a change of venue to another justice of the peace court in the same district. The justice of the peace to whose court the cause was transmitted on change of venue set the case for hearing on September 1st, and issued a notice to the defendant to that effect. This notice was never served upon him, however. It was returned by the constable reciting that defendant could not be found. The justice of the peace thereafter proceeded as though the defendant were a nonresident of the city, and issued notices by publication to the effect that the cause would be heard and determined on the date therein mentioned. The defendant not appearing thereto judgment was given against him by default. Afterwards plaintiff procured a certified transcript of this judgment, and filed the same in the office of the clerk of the circuit court of the city of St. Louis, as provided by our statute. Execution was duly issued thereon, and levied upon property owned by the defendant. Afterwards the defendant filed the motion referred to, moving the circuit court to set aside the judgment of the justice, which had then, by virtue of the statute, become parcel of the records of the circuit court. To meet this, plaintiff filed a paper which he denominated a "demurrer." This paper, whatever it was, challenged the sufficiency of the grounds set forth in defendant's motion for setting aside the judgment referred to. The grounds contained in defendant's motion to set aside the judgment may be resolved under two heads; that is, the first group are such as might be sufficient for the writ of error coram nobis at common law, and the second are grounds of fraud. The first ground alleged pertains to the fact that defendant was a resident of the city of St. Louis and was proceeded against as though he were a nonresident. That is to say, the motion alleges that the defendant was at all times a resident of the city of St. Louis, and that, although the justice issued a notice to be served upon him, the constable failed to make personal service thereof, and returned it, reciting that defendant could not be found; that upon this showing, notice by publication was given, as though he were a nonresident, to the effect that his cause would be heard on a certain day. It thus appearing that the justice proceeded upon the assumption that defendant was in fact a nonresident when he was a resident of St. Louis, it may be that such is a competent ground at common law to set aside the judgment by a proceeding under the old form of writ of error coram nobis. The point is not decided, as it is entirely unnecessary to do so in this case. See, however, Cross v. Gould, 131 Mo. App. 585, 110 S. W. 672.

The other ground brought forward in the motion to set aside the judgment is to the effect that the plaintiff in the case fraudulently represented to the justice that defendant was in fact a nonresident of the city of St. Louis, and thus procured the justice to issue notices, and proceeded against him as though he were in fact a nonresident. This ground,...