Hartman v. Hartman
| Decision Date | 16 January 1911 |
| Citation | 133 S.W. 669,154 Mo.App. 243 |
| Parties | MILO E. HARTMAN, Plaintiff in Error, v. ORA HARTMAN, Defendant in Error |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. C. H. Kitchener, Special Judge.
AFFIRMED.
Cause affirmed.
L. H Waters for appellant.
(1) The demurrer admitted the facts stated in plaintiff's petition and should have been overruled. Coram nobis or a writ in the nature of it was the proper remedy and there is no time limited within which it should have been filed. In re Tony, 11 Mo. 661; State v. Clarkson, 88 Mo.App. 553; 23 Cyc., p. 883-885, sec. 3; State v Wallace, 209 Mo. 364; State ex rel. v. Riley, 219 Mo. 682; Cross v. Gould, 131 Mo.App. 585. (2) Plaintiff in error cannot be deprived of his rights, his life, his liberty, or his property without due process of law. Constitution of the U.S. sec. 1, art. 14, amendments; Secs. 10, 30, art. 2, Constitution of Missouri. (3) General Waters had a right to demur to our petition. This was correct practice. Tidd's Practice, 1117. It could have been brought either as a motion in the original cause, or as an independent proceeding in the same court which tried the original case. State ex rel. v. White, 75 Mo.App 259; Dugan v. Scott, 37 Mo.App. 669.
L. H Waters for defendant in error.
(1) Judge Kirshner had jurisdiction to hear and determine the case. "When a special judge is elected or agreed upon to try a case, his power will not cease until the final determination of the case." Naffzieger v. Rud, 98 Mo. 89; Ex parte Clay, 98 Mo. 581; State ex rel. v. Deposit Co., 117 S.W. 619. (2) The clerk's inadvertence in entering the decree could have been corrected by a nunc pro tunc entry. When the clerk made a clerical mistake in entering a decree divorcing the defendant in a case where plaintiff's petition was dismissed without a divorce being granted either party, it was held that a nunc pro tunc entry at the next term was justified. Moster v. Moster, 53 Mo. 326. (3) Plaintiff's motion, filed and heard at the October term, 1908, to modify the decree as to the custody of the child, was a waiver of the error complained of. (4) The writ of error coram nobis is within the prohibition of sections 2931 and 2932, R. S. 1899. Moster v. Moster, 53 Mo. 327. The writ of error coram nobis is not a writ of right. Higbie v. Comstock, 1 Denio 652; State ex rel. v. Wallace, 209 Mo. 364-5. (5) Courts cannot limit the prohibition to the statutory review. The statute is clear and emphatic. Salisbury v. Salisbury, 92 Mo. 687. The prohibition of the statute is absolute and cannot be avoided, whether the proceeding be called one at law or in equity, or by whatever name such a pleading be designated. Smith v. Smith, 48 Mo.App. 618; Cole v. Cole, 89 Mo.App. 231; Elliott v. Elliott, 135 Mo.App. 44.
This case comes to this court on writ of error. Plaintiff in error petitioned the circuit court for a writ of coram nobis. The defendant interposed a motion to quash the writ, which was sustained by the court, and plaintiff declining to further plead, judgment was rendered against him, to reverse which he sued out this writ of error.
The facts are that defendant, Ora Hartman, brought suit in the Jackson County Circuit Court to obtain a divorce from the plaintiff herein. On Friday, November 6, 1908, Judge Park, judge of Division One of said court, being absent, the Hon. C. H. Kitchner was elected to try the cause. On that day the trial of the cause was entered upon. Upon the close of the day the cause was continued until Monday, November 9th, and continued through the following day and into Wednesday, the 11th of November, on which a judgment was rendered in favor of the plaintiff therein, against the defendant, the plaintiff herein.
On November 9th, Judge Park returned and resumed his regular duties as judge of said division. Judge Kitchner on learning that Judge Park was also sitting in said division Monday, Tuesday and Wednesday, ordered the clerk to enter the decree rendered as of the 6th, entered as of the 11th of the month. Within four days from the latter date the plaintiff in error herein filed his motions for a new trial and in arrest of judgment, but not within four days from the date of the entry of judgment on the 6th of the month.
At the same term on December 29, 1908, the court made the following order in the cause:
On the same day plaintiff in error filed an affidavit in which he recited that he was not permitted to see his child as provided by the decree of divorce, whereupon the court, on application of defendant's attorney modified the decree so that the husband was allowed to see the child at stated times. It is stated in the brief of the defendant in error that the plaintiff in error has enjoyed the benefit of the said modification of the decree for two years.
The contention of the defendant in error is that, as the plaintiff in error could have corrected the inadvertence of the clerk in entering the decree by a nunc pro tunc entry, he has no standing in court. This is certainly true because the record of the proceeding in the case was available for that purpose, as it must have shown that the trial was in progress from the 6th to the 11th of the month. This could have been accomplished on the 24th day of December, during the same term, and while the special judge in the case was sitting, at which time he overruled defendant's motion for a new trial and in arrest of judgment.
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