Pelz v. Bollinger

• Decision Date: 01 March 1904
• Citation: 79 S.W. 146,180 Mo. 252
• Parties: PELZ v. BOLLINGER.
• Court: Missouri Supreme Court

79 S.W. 146

180 Mo. 252

PELZ v. BOLLINGER.

Supreme Court of Missouri. Division No. 2.

March 1, 1904.

JUDGMENTS—VACATION—FRAUD—COURT RULES —VALIDITY—NONCOMPLIANCE — PENALTIES— RESTRICTION OF EVIDENCE—ABUSE OF DISCRETION—JUDICIAL NOTICE.

1. A judgment will not be set aside on the ground of fraud except on satisfactory proof that such impeaching fraud occurred in the very "concoction or procurement" of the judgment.

2. Where the court directed judgment in an action, and entered the minutes thereof in the court docket in term time, it was proper for the successful party to write out the decree in full, and have it spread on the record by the clerk after the adjournment of the court for the term.

3. Where, in an action involving the title to real estate, plaintiff failed to file an abstract of title with the petition as required by a rule of court, providing that no other evidence of record title except the dockets referred to in such abstract and evidence introduced in support of objections thereto should be admitted at the trial, the refusal of the court to permit plaintiff to introduce any evidence of her title by reason of such failure was an abuse of the trial court's discretion.

4. It was error for the court to exclude evidence of docket entries in the same litigation before the same court on such ground, the court being bound to take judicial notice of such entries.

5. A court rule providing that in actions affecting the title to real estate the plaintiff shall file an abstract of title with his petition, and that no other evidence of the record title, except the records and documents referred to in the abstracts, and such evidence as may be introduced in support of objections to the records and documents referred to therein, shall be heard on the trial of the case, was in excess of the power of the court, and was therefore void.

Appeal from Circuit Court, Butler County; J. L. Fort, Judge.

Action by Sallie Pelz against Solomon Bollinger. From a judgment in favor of defendant, plaintiff appeals. Reversed.

E. R. Lentz, for appellant. G. A. Standard, for respondent.

BURGESS, J.

The object of this suit is to have set aside and for naught held a judgment and decree rendered in the circuit court of Butler county in an action wherein the defendant in this suit was plaintiff and Chris. Goodson and the plaintiff herein were defendants, in which it was adjudged and decreed that the title to certain lands therein described of which plaintiff Pelz claimed to be the owner, be divested out of him, the said Goodson, and be vested in the plaintiff Solomon Bollinger free from any claim of the defendants Chris. Goodson or Sallie Pelz, or either of them, in and to said lands, upon the ground that said judgment and decree were obtained by fraud. The trial resulted in a judgment dismissing plaintiff's bill, and against her for costs. In due time thereafter plaintiff filed motions for new trial and in arrest, which being overruled she saved exceptions, and appealed the case to the St. Louis Court of Appeals for review. The court declined to entertain the appeal for the want of jurisdiction upon the ground that the title to real estate is involved, and transferred the cause to this court in accordance with the provisions of section 1657, Rev. St. 1899. The facts, briefly stated, are that in December, 1896, one Chris. Goodson was the owner of the tract of land described in the petition, and which is the subject-matter of this litigation. On the 1st day of March, 1897, he and his wife, for a valuable consideration to them paid by said Sallie Pelz, sold and conveyed said land by general warranty deed to plaintiff, which said deed was on the same day filed for record in the office of recorder of deeds for said county. At the time plaintiff purchased the land she had no knowledge, other than as hereinafter stated, of any claim of defendant Bollinger to said land. Some time prior to the sale of the land by Goodson to plaintiff, Goodson and defendant had entered into a verbal or oral contract for the sale or exchange of the land to defendant. The land in question was at that time unoccupied timber land. But on the 24th day of February, 1897, the defendant brought suit in the circuit court against Goodson to compel a specific performance of said contract between the said Goodson and himself, alleging in his petition that he (Bollinger) had taken possession of the premises of the defendant, and, in addition thereto, had paid $200 of the mortgage indebtedness on said land; which said allegation the petition alleges was untrue in every respect, and was made with the intention of deceiving the court with respect to the facts in said cause. Process was served in that cause upon the defendant Goodson on the 16th day of March, 1897, which was about 15 days after plaintiff's deed from Goodson was filed for record, but plaintiff Bollinger filed a notice in lis pendens in the proper office on the 24th day of February, 1897. At the May term, 1897, of said court, an interlocutory judgment by default was rendered in said cause, and the cause continued to the next term. At the November term, 1897, the plaintiff, claiming to own the fee-simple title to said land, filed motion in said cause setting up these facts, and alleging that she had a meritorious defense to Bollinger's cause of action, and asking to be made a party defendant; that the judgment by default be set aside, and she be allowed to file answer; and at the same time tendered an answer in said cause; but the court overruled the motion, and refused this plaintiff leave to file answer in said cause. No other action was taken at that term except to continue said cause; and at the May term of the said court for 1898 said cause was continued, and no other action taken, and at the November term, 1898, the interlocutory judgment by default was made final, and this was the only action taken at this term. After the adjournment of the November term, 1898, of said court, G. A. Standard, the attorney for the plaintiff in that cause, wrote out a decree of the court, and procured the clerk of the circuit court to enter the same upon the records of that court as the judgment decree thereof; wherein, as plaintiff alleges, it is falsely and fraudulently stated to be found by the court that the application of this plaintiff to be made a party defendant and to set aside the default had been sustained, that this plaintiff was made a party defendant in that cause, that she filed answer in said cause, and that at the November term a trial was had, evidence introduced, and the findings and judgment of the court based thereon. The said decree then proceeds to divest the title out of the said Chris. Goodson and out of this plaintiff, and to vest the same in the defendant Bollinger. The court rejected each and every offer of documentary evidence offered by the plaintiff; not because it was incompetent, but, as he said, plaintiff had violated rule 4 of said court, and therefore could offer no testimony.

There is no question but that the circuit courts of this state have the power to vacate or enjoin judgments obtained by fraud, and that they will do so when the fraud is practiced in the procurement of the judgment. Payne v. O'Shea, 84 Mo. 129; ...