Jeude v. Sims

• Decision Date: 04 May 1914
• Docket Number: No. 16014.,16014.
• Parties: JEUDE et al. v. SIMS et al.
• Court: Missouri Supreme Court

166 S.W. 1048

258 Mo. 26

JEUDE et al. v. SIMS et al.

No. 16014.

Supreme Court of Missouri.

May 4, 1914.

1. JUDGMENT (§ 140) — DEFAULT JUDGMENT — SETTING ASIDE — STATUTORY PROVISIONS.

Rev. St. 1909, § 2101, providing that a final judgment entered against a defendant not summoned, and not appearing, may be set aside within a specified period on defendant filing a petition for review showing a good cause for relief, does not apply where defendant appeared and filed an answer to the original petition, though he subsequently failed to appear and take part in the subsequent proceedings, resulting in an adverse judgment.

2. JUDGMENT (§ 153) — VACATING JUDGMENT — GROUNDS — IRREGULARITY — MOTION.

A motion under Rev. St. 1909, § 2121, declaring that judgments shall not be set aside for irregularity on motion, unless the motion is made within three years after the term at which the judgment was rendered, must be based on an irregularity patent on the record, and not depending on proof outside the record.

3. JUDGMENT (§ 299) — SETTING ASIDE — JURISDICTION OF COURT.

The court, except as authorized by statute, has no authority to disturb its judgment after the lapse of the term.

4. JUDGMENT (§ 334) — DEFAULT JUDGMENT — VACATION — CORAM NOBIS.

A writ of error coram nobis to vacate a default judgment is granted only to correct an error of fact pertinent to the issues in the case, and not mere extraneous matters.

5. JUDGMENT (§ 334) — DEFAULT JUDGMENT — VACATION — CORAM NOBIS.

A motion to set aside a default judgment, on the ground that plaintiff fraudulently misled counsel for defendant as to the time of the trial of the case, is not an application for a writ of error coram nobis, for the trial of the issue of fraud is the trial of an issue outside of any involved in the case in which the judgment was rendered.

6. JUDGMENT (§ 334) — DEFAULT JUDGMENT — VACATION — CORAM NOBIS.

An application for a writ of error coram nobis to set aside a default judgment, based on a fact known to the party applying and to the court prior to the rendition of the judgment, is properly denied.

7. JUDGMENT (§ 403) — VACATION — EQUITABLE RELIEF — INDEPENDENT ACTION.

The equitable remedy to set aside a judgment for fraud can only be invoked by an independent equitable action.

8. APPEAL AND ERROR (§ 876) — REVIEW — VACATION OF JUDGMENT.

A plaintiff who treats an application by defendant to vacate a default judgment as a motion, and who challenges the sufficiency thereof by objection to evidence, on the ground that the motion shows on its face that it will not lie, and that the facts proposed to be adjudicated cannot be reached by motion, is not thereby precluded from questioning the sufficiency of the motion on appeal from a judgment setting aside the judgment.

9. APPEAL AND ERROR (§ 544) — QUESTIONS REVIEWABLE — RECORD PROPER.

Where the record proper shows the rendition of a valid judgment at a term of court and the setting aside thereof at a subsequent term when the court had lost jurisdiction over the judgment, the action of the court in setting aside the judgment was reviewable on the record proper.

10. APPEAL AND ERROR (§ 544) — QUESTIONS REVIEWABLE — RECORD PROPER.

A motion in the nature of an application for a writ of error coram nobis to set aside a default judgment is in the nature of a petition, and is a part of the record proper, and need not be preserved by bill of exceptions to require the court on appeal to review the setting aside of the judgment.

Lamm, C. J., dissenting.

In Banc. Appeal from Circuit Court, Ste. Genevieve County; Chas. A. Killian, Judge.

Action by Susan Jeude and others against Thomas B. Sims and others. From a judgment setting aside a judgment for plaintiffs, they appeal. Reversed.

Jere S. Gossom, of Caruthersville, W. O. Anderson, of St. Louis, and Pope & Lohman, of Jefferson City, for appellants. Ely & Kelso, of Cape Girardeau, and John A. Hope, of St. Louis, for respondents.

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, R. S. 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 county 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 23d day of July, 1906, and was taxed with the costs of such continuance. On said 23d 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 (28), in township nineteen (19), north of range twelve (12) 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 own 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, have 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 further considered, ordered, and adjudged by the court that plaintiffs have and recover of and from the defendants, Thomas B. Sims, Laura B. Tistadt, Clara M. Barcroft, Mary F. Liles, and Bettie Green, their costs in this suit expended and laid out, and that they, the above-mentioned plaintiffs, have execution therefor."

The application for continuance, mentioned supra, becomes a material matter, because of the facts therein recited: "And now comes the above-named Thomas B. Sims, by T. B. Whitledge and Joseph Pratt, his attorneys, and moves the court to continue this cause to the 24th day of July, 1906, for the reason stated in the following affidavit: `T. B. Whitledge, being duly sworn, says that one George H. Williams, of St. Louis, is the principal attorney for the defendants in this cause, and that himself and Joseph C. Pratt were employed by the said Mr. Williams at the last term of this court to assist in the trial of the said cause, and that they knew nothing of the merits of the case, and are not prepared and cannot safely go to trial at this term of the court on account of the absence of the said George H. Williams, the attorney of the defendants as above stated; that himself and Mr. Pratt fully expected the said Mr. Williams to be in attendance for the trial at this term of court, and fully expected him to arrive at the 10:30 train from St. Louis, and upon his failure to arrive upon said train he called up by telephone the St. Louis office of Stewart, Elliott & Williams, the law firm of the said George H. Williams, of St. Louis, and was informed by the person in charge of the office that Mr. Williams was absent from the city, and further stated that a copy of a letter was on the files of their office written by Mr. Williams to Ely & Kelso, a firm of lawyers at Kennett, Missouri, which stated that he (Mr. Williams) had seen Mrs. and Miss Jeude, two of the plaintiffs in the above-entitled cause, and made an agreement with them that this case was to be continued by consent to the next regular term of this court; that the said letter was dated on June 18, 1906, and that said Ely & Kelso were in said letter directed to inform Mr. Gossom, the attorney for the plaintiffs in this cause, of the said agreement for continuance; that the letter files also contained a letter from the said Ely & Kelso, dated June 23d, acknowledging the receipt of said letter, and stating that they would inform Mr. Gossom of the agreement to continue, and that the said George H. Williams, in good faith, and relying on the said agreement with the above-named plaintiffs, and for that reason alone, did not come down for the trial of this cause at this time. The affiant further says that he was informed that Mr. Williams could be here in time for the trial of said cause by to-morrow morning, if the court would continue it until that time. Affiant further says that neither he himself or Mr. Pratt have any of the title deeds necessary to be introduced in this cause in order to properly defend the said action; that all such title deeds are in the possession of the said Mr. Williams and Thomas B. Sims, the...