Neenan v. City of St. Joseph

• Decision Date: 22 December 1894
• Parties: NEENAN v. CITY OF ST. JOSEPH.
• Court: Missouri Supreme Court

28 S.W. 963

126 Mo. 89

NEENAN v. CITY OF ST. JOSEPH.

Supreme Court of Missouri, Division No. 1.

December 22, 1894.

JUDGMENT AGAINST INFANT — VACATION AFTER TERM — STATUTORY SUIT FOR LAND — PARTIAL VACATION OF JUDGMENT.

1. A judgment rendered against an infant for whom no guardian ad litem has been appointed is irregular, and may be vacated.

2. For such an error in fact, which can only be shown by evidence outside the record, a judgment can be attacked by a direct proceeding

after the lapse of the term at which it was rendered.

3. A judgment is not such an entirety as not to be amendable or subject to correction as to one of the parties alone, unless the substantial rights of the others would be injuriously affected thereby.

4. A judgment in a statutory suit for taxes is strictly in rem, not in personam.

5. A judgment in a statutory suit for taxes brought against several defendants may be vacated as to one, and stand good as to the rest. Black, C. J., dissenting.

Appeal from circuit court, Buchanan county; H. M. Ramey, Judge.

Action by James Neenan against the city of St. Joseph. From a judgment in favor of plaintiff, defendant appeals. Reversed.

H. S. Kelley, for appellant. M. G. & J. Moran, for respondent.

MACFARLANE, J.

This is a proceeding in the nature of a bill of review, or error coram nobis, to vacate a judgment for the sale of plaintiff's land for delinquent taxes.

1. The suit for taxes was prosecuted against John Neenan, John J. Neenan, Mary Neenan, and plaintiff, James Neenan, for the taxes due the city of St. Joseph for a number of years, and charged against the land. All the parties to the suit, except the plaintiff, were personally served with process, but none of them answered. The court found that "defendants were duly served by personal service," and rendered judgment charging their land, of which the defendant John Neenan held the life estate, and the other defendants the remainder, as tenants in common, with the delinquent taxes due thereon, adjudged to be $427, and decreed a sale of the land to satisfy the same. This proceeding to set aside and vacate the said judgment was commenced at the next term of court after its rendition. None of the parties to said judgment were made parties to this suit, except plaintiff and defendant the city of St. Joseph.

The petition charged, as ground for vacating the said judgment, that at the time the suit was commenced and the judgment was rendered he was a minor, and no guardian ad litem was appointed by the court to represent him and protect his interests, and that he was not personally served with process, as was erroneously found by the court. Plaintiff stated in his petition facts which, if true, constituted a meritorious defense to said tax suit. The answer was a general denial. The court granted the relief, but vacated the judgment as to all the defendants, and reinstated the case.

The statute declares that "after the commencement of a suit against an infant defendant, and service of process upon him, the suit shall not be prosecuted any further until a guardian of such infant be appointed." The statute is imperative, and as no guardian was appointed for plaintiff, who was shown to have been a minor, the judgment was improperly rendered against him. What the effect of the judgment may have been upon a collateral attack made thereto after a sale of the property thereunder, is not a question here. No sale was made under the judgment, and this proceeding questions its validity directly. It is settled that, for an error in fact which can only be shown by evidence outside the record, a judgment can be attacked by a direct proceeding after the lapse of the term at which it was rendered. "If a judgment is rendered against an infant who appears by attorney, this is an error in fact, for which a writ of error coram nobis will lie." Ex parte Toney, 11 Mo. 661. "The usual way of bringing such matters before the court, according to the practice in this state, is by motion supported by affidavits or evidence." Ex parte Gray, 77 Mo. 161, and cases cited; Randolph v. Sloan, 58 Mo. 155; State v. Tate, 109 Mo. 266, 18 S. W. 1088; Nave v. Todd, 83 Mo. 601. It will be seen from the cases cited that judgments against minors, married women, slaves, deceased persons, and upon unauthorized appearance of counsel, have been corrected in this manner. In regard to a proceeding of this character after judgment, we may aptly quote what was said in a proceeding to open a default: "The Code is not sufficiently comprehensive to embrace every varied phase which a case may assume before reaching a judicial determination, and in consequence of this resort must be frequently had to common-law methods of procedure." Tucker v. Insurance Co., 63 Mo. 594. There can be no doubt that plaintiff was entitled to the relief sought, and that the proceeding adopted was authorized.

2. But it is insisted — and this is the chief complaint — that, though plaintiff was entitled to the relief sought, the court erred in setting aside the judgment as to the other defendants. Under some of the early decisions of this court, it was repeatedly said that a judgment at law is an entirety, and cannot be recalled or reversed as to one party, and stand good against the other. If set aside as to one, it must be set aside as to all, and in its entirety. Randalls v. Wilson, 24 Mo. 76; Rush v. Rush, 19 Mo. 441; Pomeroy v. Betts, 31 Mo. 419; Hulett v. Nugent, 71 Mo. 134. But it was said by Judge Scott, in one of these cases, that "the rule that a judgment is an entire thing, and if reversed as to one must be reversed as to all, is one applicable to judgments in courts of common-law jurisdiction; in other words, to judgments at law."...