Jones v. The St. Joseph & Grand Island Railway Company
| Decision Date | 02 November 1914 |
| Citation | 170 S.W. 427,183 Mo.App. 224 |
| Parties | JOHN G. JONES, Respondent, v. THE ST. JOSEPH & GRAND ISLAND RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. A. D. Burnes, Judge.
REVERSED AND REMANDED (with directions).
Judgment reversed and cause remanded.
W. S Herndon and Brown & Eastin for appellant.
The Statute of Limitations in regard to irregularities applies to such as appear on the fact of the proceedings, and not to such as are brought before the court by evidence aliunde, as in this case. Graff v. Dougherty, 139 Mo.App. 56; Parks v. Coyne, 156 Mo.App. 379; Colter v Luke, 129 Mo.App. 702; Perry v. Stone Co., 173 Mo.App. 414; Bank v. Martin, 171 Mo.App. 194; Craig v. Smith, 65 Mo. 536.
Pross T. Cross for respondents.
(1) Before a judgment can be set aside on the ground of fraud, it must appear that the fraud was practiced in the very act of procuring the judgment. The judgment must be concocted in fraud. Cross v. Gould, 131 Mo.App. 603; Fears v Riley, 148 Mo. 58; McDonald v. McDonald, 242 Mo. 172; Mody v. Peyton, 135 Mo. 489; Stave Co. v. Butler Co., 121 Mo. 630. (2) The burden is upon defendant to prove such fraud by clear, strong and cogent evidence, leaving no room for reasonable doubt of its existence. And every presumption is to be indulged in favor of the integrity of the judgment. Johnson v. Realty Co., 167 Mo. 338-9; Lieber v. Lieber, 239 Mo. 31. (3) If the judgment was rendered by reason of the neglect, oversight or laches of the defendant or its attorney, the court will not set the judgment aside. Colter v. Luke, 129 Mo.App. 707; Fisher v. Fisher, 114 Mo.App. 632; Anderson v. Perkins, 52 Mo.App. 527; Gehrke v. Jod, 59 Mo. 522.
This case is a companion of the case of Byron Jones by next friend v. The St. Joseph and Grand Island Railway Company 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 $ 2500 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 23rd 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 23rd 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 court room 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 the one Cross intended he should, Cross appeared in court on the 26th of September and the court made and entered of record the following order:
"It is ordered by the court that the order of continuance heretofore made herein be and the same is hereby set aside."
This was done without notice to defendant. Thereafter, just before the September term expired, respondent called the case for trial, and the defendant not appearing, a jury was waived, evidence was heard and the cause submitted to the court resulting in a judgment for $ 2500 the amount sued for in the petition.
As stated before, the fact that a continuance was entered in this case on the day it was set and called makes a vital difference between it and the other case in which nothing of the sort was done. The record of the court recites that the parties appeared in open court and mutually agreed, and the court ordered, that the case be continued until the next regular term. That announcement and order was equivalent to a direction or permission from the court that defendant could depart from the forum and not reappear until the time provided by statute for the holding of the next term. The defendant was constructively present in court and heard that order made and was thereupon entitled to depart and pay no attention to the case until the convening of the next term [Mansur v. Pacific Mut. Ins. Co., 136 Mo.App. 726, 118 S.W. 1193.] If for any reason the opposite side was entitled to have that order set aside after the...
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