Jones v. St. Joseph & G. I. Ry. Co.

• Decision Date: 02 November 1914
• Docket Number: No. 11248.,11248.
• Citation: 183 Mo. App. 224,170 S.W. 427
• Court: Missouri Court of Appeals
• Parties: JONES v. ST. JOSEPH & G. I. RY. CO.

170 S.W. 427

183 Mo. A. 224

JONES v. ST. JOSEPH & G. I. RY. CO.

No. 11248.

Kansas City Court of Appeals. Missouri.

November 2, 1914.

1. CONTINUANCE (§ 52) — DEFAULT JUDGMENT — JURISDICTION TO RENDER AFTER GRANTING ORDER OF CONTINUANCE.

When a cause was continued by agreement, defendant claimed that it was also agreed that it should not be brought to trial until an attempt to compromise had been made. Plaintiff denied any such agreement; but through a misunderstanding between two of his attorneys it was announced at the next term that the case was to be continued, and an order of continuance was entered. The court thereafter set aside this order without notice to defendant, and, upon defendant's failure to appear, rendered judgment for plaintiff. Held, that defendant was constructively present in court when the order of continuance was made, and was entitled to rely thereon, and was thereafter neither actually nor constructively in court, and hence the court had no jurisdiction to render judgment against it in its absence, at least without notice of the motion to set aside the order of continuance, whether the order was entered by mistake or whether there was an agreement for a further continuance, as claimed by defendant.

2. JUDGMENT (§ 141) — SETTING ASIDE — WRIT OF ERROR CORAM NOBIS.

Where, after the court had continued a case, it set aside such order without notice to defendant, and at the same term rendered judgment for plaintiff upon defendant's failure to appear, the judgment was open to attack by a writ of error coram nobis, as the court proceeded as though defendant was constructively in court, and therefore proceeded as though a material fact, which did not exist, and the absence of which defeated the court's power to render judgment, existed.

Appeal from Circuit Court, Clinton County; Alonzo D. Burnes, Judge.

Action by John G. Jones against the St. Joseph & Grand Island Railway Company. From an order overruling a motion in the nature of a writ of error coram nobis to set aside a judgment for plaintiff, defendant appeals. Reversed and remanded, with directions.

W. S. Herndon, of Plattsburg, and Brown & Eastin, of St. Joseph, for appellant. Pross T. Cross, of Lathrop, for respondent.

TRIMBLE, J.

This case is a companion of the case of Byron Jones, by next friend v. St. Joseph & Grand Island Railway Co., 170 S. W. 425, just decided by this court. Respondent herein is the father of respondent in that case, and sued at the same time as his son for injuries alleged to have been sustained in the same way and on the same occasion. Appellant seeks by motion in the nature of a writ of error coram nobis to set aside a judgment for $2,500, rendered against it at the September, 1913, term of the circuit court of Clinton county.

With one very important exception, the facts in this (the father's) case are the same as in the son's. The suit was returnable to the January, 1913, term, at which answer was duly filed, and the cause was continued by agreement to the April term. Under the agreement made in the telephone conversation mentioned in the Byron Jones Case, had between defendant's attorney, L. J. Eastin, at St. Joseph, and plaintiff's principal attorney, Pross T. Cross, at Lathrop, the case was again continued at the April term. As in the son's. case, so in this, the contention of appellant is that this telephone conversation not only provided for a continuance at the April term, but also contained an agreement or understanding that an attempt would be made to settle by compromise before any further steps would be taken in the case. Respondent denies that any such agreement or understanding was had. The September term began on September 22, 1913, and this cause appeared on the docket for the 23d of that month. Unlike the Byron Jones Case, in which no entries were made, except that containing the judgment, there were certain entries made which we think create a vital distinction between this and the Byron Jones Case. When the case at bar was reached on the 23d and called, Mr. Musser, one of the plaintiff's attorneys, announced that the case was continued, and the court made and entered of record the following order:

"Come now the parties in the above-entitled cause, by their respective attorneys, and, by the mutual agreement of the said parties here in open court made, it is ordered by the court that this cause be and the same is hereby continued until the next regular term hereof."

It seems that Mr. Musser had received from his associate, Mr. Cross, who was principal counsel in the case, instructions over the telephone to have a case continued, and Mr. Musser, upon entering the courtroom and hearing the court call the case now under consideration, made the announcement resulting in the continuance of the case. Upon learning that Musser had continued this case instead of...