Jeude v. Sims

• Decision Date: 04 May 1914
• Citation: 166 S.W. 1048,258 Mo. 26
• Parties: SUSAN JEUDE et al., Appellants, v. THOMAS B. SIMS et al
• Court: Missouri Supreme Court

166 S.W. 1048

258 Mo. 26

SUSAN JEUDE et al., Appellants, v. THOMAS B. SIMS et al

Supreme Court of Missouri

May 4, 1914

Appeal from Ste. Genevieve Circuit Court. -- Hon. Charles A Killian, Judge.

Reversed.

Jere S Gossom and W. O. Anderson for appellants.

(1) This proceeding is founded on a motion in the nature of a writ of error coram nobis, or rather the motion which, in modern practice, is substituted for it, whereby it is sought to set aside and vacate the judgment rendered for a fact which was well known to the court, the respondent and his attorneys at the time said judgment was rendered. A writ of coram nobis is addressed to the court itself, where the record is, and lies to correct some latent matter of fact unknown to the court, and which, if known, would have prevented the judgment rendered. Neither a motion coram nobis, nor the motion under the statute which is now substituted for it, will lie to vacate a judgment for the reason assigned in the motion filed in this case. Marble v. Van Horn, 53 Mo.App. 363; Hadley v. Bernero, 103 Mo.App. 559. The matter of fact which is meant in this connection is such a character of fact as would, if known disable the court from rendering the judgment; as if, as before stated, the party was dead or a feme covert or a lunatic. It must not be understood that the function of a motion of this nature is to operate like a motion for a new trial. If respondent was dissatisfied with the court's decision in overruling his application for a continuance, his remedy was by appeal or writ of error. Respondent cannot substitute this proceeding to take the place of a motion for a new trial. The matters of fact set up in this motion, when passed upon by the court in the application for a continuance became a matter of exception which could be reached only by a motion for a new trial and bill of exceptions. Jameson v. Kinsey, 85 Mo.App. 298. (2) The court had no jurisdiction to set aside the judgment. Respondent never filed his motion until after the term of court at which the judgment was rendered had adjourned, and after the lapse of the regular October term, 1906, following. The ruling of the trial court in overruling the application for a continuance, if it was error, was simply an error of law, and could have been corrected only upon appeal or writ of error. It did not constitute "irregularities" on the face of the proceedings subjecting the judgment to attack by motion filed within three years after its rendition. For the court did not violate any "prescribed rule or mode of procedure." Such errors are of judicial discretion and are not correctible after the lapse of the term under the authority given by the statute to set aside judgments for "irregularity." Jameson v. Kinsey, 85 Mo.App. 301; Harbor v. Railroad, 32 Mo. 423. (3) Whether the motion be considered as a motion under the statute, Sec. 795, Revised Statutes 1899, or as a writ of error coram nobis, it will not lie to set aside a judgment for the reason alleged in the motion in this case. Hirsh v. Weisberger, 44 Mo.App. 506; Phillips v. Evans, 64 Mo. 17; Rankin v. Lawton, 17 Mo.App. 576; Craig v. Smith, 65 Mo. 536; Dugan v. Scott, 37 Mo.App. 663; Dearborn v. Gann, 126 Mo.App. 642; Harbor v. Railroad, 32 Mo. 423. (4) If there was such an agreement as claimed by respondent, under the written rules of the circuit court of Ste. Genevieve County, in which this case was tried, it was not binding on appellants for the reason that the agreement was not in writing as required by Rule No. 22 of said circuit court. (5) Even if there had been an agreement between the parties such as is claimed by respondent's attorney, it could not bind the plaintiffs, other than the old lady Jeude, for there is nothing to show that she had any authority from the other plaintiffs to agree to a continuance.

Ely & Kelso and John A. Hope for respondent.

(1) A motion is no part of the record and it can only be made so by incorporating it into the bill of exceptions; although the motion is set out in the abstract, that does not make it a part of the record. United States v. Gamble, 10 Mo. 459; Christy v. Myers, 21 Mo. 112; In re Webster, 36 Mo.App. 355; McNeill v. Ins. Co., 30 Mo.App. 306; Mackler v. Skellett, 36 Mo.App. 174; Bank v. Fink, 40 Mo.App. 367; Corby v. Tracy, 62 Mo. 515; Force v. Patton, 149 Mo. 446. (2) There can be no question that the circuit court had the power on motion to enter the order appealed from, to-wit: The order entered at the October Term, 1907, vacating the judgment rendered at the April Term, 1906. This is conclusively established by many decisions of the appellate courts of this State, from almost the first volume of the reported decisions down to the latest -- the power being exercised (a) by motion under the statute in case of certain irregularities apparent on the fact of the judgment, (b) by the common law writ of error coram nobis in case of error arising from some mistake of fact not appearing on the record, or (c), by a proceeding by motion (sometimes described as being in the nature of a writ of error coram nobis) wherein the court in the exercise of an inherent power and discretion in furtherance of justice, will set aside a judgment, rendered at a previous term, for fraud, mistake, accident, surprise, excusable neglect, or inadvertence. The following cases illustrate the far-reaching character of this last mentioned remedy and the wide discretion allowed a trial court in exercising this inherent power: Downing v. Still, 43 Mo. 309; Warren v. Rusk, 16 Mo. 114; Spalding v. Meier, 40 Mo. 176; Fisher v. Fisher, 114 Mo.App. 627; Estes v. Nall, 163 Mo. 387; Bronson v. Schulten, 104 U.S. 410; 15 Ency. Pl. & Pr. 266, 281, 282, 285 and 286. (3) In matters which rest in the sound discretion of a trial court, the rule is that the appellate court rarely interferes. Vacating a judgment, whether at the term at which the judgment was rendered or at a subsequent term, is a matter resting in the discretion of the trial court. Stout v. Lewis, 11 Mo. 438; Scott v. Smith, 133 Mo. 623; Craig v. Smith, 65 Mo. 536. (4) No appeal lies from the order of the trial court vacating its former judgment. The judgment vacated had been rendered without a trial. The motion vacating it, which had the effect of reopening the case, so that there could be a trial of the issues between plaintiff and defendant, was not a motion for a new trial within the meaning of the statute which authorizes an appeal "from any order granting a new trial," nor was the order vacating the judgment such an order as is meant by that statute. The order did not finally dispose of the case. Crossland v. Admire, 118 Mo. 87; Schwoerrer v. Christofel, 64 Mo.App. 81; Breed v. Hobart, 187 Mo. 145; State v. Wallace, 209 Mo. 365; Hirsch v. Weisberger, 44 Mo.App. 506.

WALKER J. Lamm, C. J., dissents in an opinion filed, and Faris, J., does not sit.

OPINION

In Banc

WALKER, J.

This cause was certified here by the St. Louis Court of Appeals, because title to real estate was involved. To get at the real issues a short statement of the facts will suffice.

This is an action to quiet title under old section 650, Revised Statutes 1899. Petition was filed September 12, 1905, in the circuit court of Pemiscot county. Defendants appeared and filed answer at the regular November term of that court. At the request and costs of Thomas B. Sims, it was continued over to the February term of said court. At the February term said Sims took a change of venue to the Ste. Genevieve Circuit Court, and the cause was duly docketed for trial at the April term, 1906, of said last named court. At said April term, said Sims, through his attorney, Judge George H. Williams, applied for and obtained a continuance of the cause until the 23rd day of July, 1906, and was taxed with the costs of such continuance.

On said 23rd day of July, the said Sims again appeared through his attorneys, Whitledge & Pratt, and filed his application for a continuance to the next regular term of the court, which was by the court refused, and thereupon the said Sims, through his said counsel, refused to appear further in the case. The judgment record of the court on July 23, 1906, being a part of the April, 1906, term of the court, thus speaks:

"Now come the plaintiffs by their attorneys, and all the defendants having appeared, and answered plaintiffs' petition in said cause, say nothing further in bar of plaintiffs' action. Thereupon, plaintiffs, by their attorneys, waive a jury and submit this cause to the court upon the pleadings and the evidence and proof adduced in said cause, and the court, having heard and considered the same doth find that the plaintiffs are the owners in fee of the land described in the petition as follows, to-wit: The northeast quarter of section twenty-eight, in township nineteen, north of range twelve east, lying, being and situate in Pemiscot county, Missouri, and that the plaintiff Susan Jeude, is the owner and entitled to a dower interest in said land as the widow of Casper Jeude, deceased, and that each of the other plaintiffs owns an undivided one-fifth interest in fee in and to said land, subject, however, to the said dower interest of Susan Jeude, and that the defendants, nor either of them, has any right, title or interest or estate in and to said above described land. It is therefore ordered and adjudged and decreed by the court that the absolute legal and equitable title to said land is in the plaintiffs, Susan Jeude, Walter G. Jeude, Fredreca M. Jeude, Emma L. Jeude, Herbert L. Jeude and Charles C. Jeude; and that the defendants and those claiming under them are hereby precluded and forever barred from setting up any right, title, interest or estate in or to the above described land. It is...