Reed v. Bright

• Decision Date: 09 February 1911
• Parties: OLLIE M. REED et al., Petitioners, v. HENRY L. BRIGHT et al
• Court: Missouri Supreme Court

134 S.W. 653

232 Mo. 399

OLLIE M. REED et al., Petitioners, v. HENRY L. BRIGHT et al

Supreme Court of Missouri

February 9, 1911

Peremptory writ awarded.

J. B McGilvray and R. A. Mooneyham for petitioners.

(1) A demurrer to the petition and rule in prohibition admits every allegation of the petition well pleaded. State ex rel. v Shepherd, 192 Mo. 497. (2) Prohibition lies whenever the lower court is without jurisdiction or is acting in excess of jurisdiction or abuse of its powers, and no other remedy is available. State ex rel. v. Wood, 155 Mo. 425; Railroad v. Wear, 135 Mo. 230; State ex rel. v Elkins, 130 Mo. 90; State v. Hirsel, 137 Mo. 447; State v. Court of Appeals, 99 Mo. 216; State v. Withrow, 133 Mo. 522; State v. Sale, 188 Mo. 493. (3) Where an appeal is perfected the cause is pending in the appellate court, and no further order can be made in the cause by the trial court unless it be an order vacating the appeal made during the term. 2 Ency. Pleading, p. 327; Oberkotter v. Luebering, 4 Mo.App. 481; State ex rel. v. Anthony, 65 Mo. 553; Bull v. Meeks, 20 Mo. 359; Ladd v. Couzins, 35 Mo. 513; De Kalb County v. Hixon, 44 Mo. 341; Stewart v. Stringer, 41 Mo. 400. An appeal to the Supreme Court from a judgment of the circuit court invests the Supreme Court with, and deprives the circuit court of, all jurisdiction over the cause, and this is so although no appeal bond was given and there was no supersedeas of the judgment, and pending the appeal the circuit court can make no order vacating the judgment and setting aside a sale thereunder. Burges v. O'Donoghue, 90 Mo. 299; Keller v. Cashman, 118 Mo.App. 384; Cassidy's Appeal, 112 Mo.App. 717. Where an appeal has once been granted the power over the subject is functus officio and cannot be exercised a second time. State v. Anthony, 65 Mo.App. 553; Brill v. Meek, 20 Mo. 359. An appeal from a judgment of the circuit court invests the appellate court with, and deprives the circuit court of, jurisdiction over the cause. Stewart v. Stringer, 41 Mo. 400; Brill v. Meek, 20 Mo. 359; Jones v. Insurance Co., 55 Mo. 342; Burgess v. Donoghue, 90 Mo. 299; Ladd v. Couzins, 35 Mo. 513; DeKalb County v. Hixon, 44 Mo. 341. But pending the appeal no order vacating the judgment (or setting aside a sale thereunder) can be made, and no further proceedings in the case can be had in the trial court. State v. Musick, 7 Mo.App. 597; Woolaston v. Mendenhall, 1 Del. Ch. 23; Levi v. Karrick, 15 Ia. 444; Helen v. Boon, 29 Ky. (6 J. J. M.) 351; Williams v. Chew, 6 Mart. (N. S.) 464; Longbottom v. Babcock, 9 La. 44; Mason v. Jones, 2 Bradf. (Sur.) 325; Suggs v. Suggs, 1 Tenn. (1 Overt.) 2. The case is none the less pending in the appellate court, though the transcript is not actually filed in such court. Foster v. Rucker, 26 Mo. 494. It seems that a court has the power during the term, at the request of appellant, to set aside an order granting an appeal, and thus vacate the appeal which has been granted in appellant's favor. The court cannot, however, vacate an order allowing an appeal after due expiration of the term at which such order is made. 1 Cyc. 814; Oberkoeeter v. Luebering, 4 Mo.App. 481; State ex rel. v. Gates, 143 Mo. 63; Burgess v. O'Donoghue, 90 Mo. 299; Bank v. Allen, 68 Mo. 474. A judgment nunc pro tunc can only be made upon evidence furnished by the papers and files in the cause, or something of record or in the minute book, or the judge's docket to amend by. Collier v. Lead Co., 208 Mo. 272; Railroad v. Holschlag, 144 Mo. 256; Young v. Young, 165 Mo. 630; Atkinson v. Railroad, 81 Mo. 50; Belkin v. Rhodes, 76 Mo. 643; State v. Primm, 61 Mo. 166; Robertson v. Neal, 60 Mo. 579; Burnside v. Wand, 170 Mo. 543; State v. Libby, 203 Mo. 597; Stidd v. Railroad, 211 Mo. 416; Reed v. Colp, 213 Mo. 587; Gamble v. Daugherty, 71 Mo. 599. (4) A properly authenticated transcript of the proceedings in the trial court imports absolute verity and cannot be contradicted by affidavits nor in any other manner. State v. Blunt, 110 Mo. 336; Wells v. Lea, 20 Mo.App. 352; Bradley-Hubbard Mfg. Co. v. Bean, 20 Mo.App. 111; 2 Ency. Pl. and Prac., p. 296; Hyath v. Wolfe, 22 Mo.App. 200. (5) To entitle respondents to a writ of error coram nobis there must have been, unknown to the court, some pre-existing fact which, if known, would have prevented the court from rendering judgment, for if the facts were known to the court, and the court acted erroneously or illegally, then it was an error of law on the part of the court and should be taken to a higher tribunal by appeal or writ of error, instead of making application to the trial court itself. Marble v. Van Horn, 53 Mo.App. 364; 1 Black on Judgments, sec. 300; 2 Freeman on Judgments, sec. 94; Milan v. Robertson, 47 Tex. 222; Hawkins v. Bowie, 9 G. & J. 428. The function of a writ of error coram nobis is to vacate a judgment in the court in which it was rendered, by apprising that court of some fact, previously unknown, which, if known, would have prevented the rendition of the judgment. Hadley v. Bernero, 103 Mo.App. 549; Smith v. Young, 124 Mo.App. 74. In this motion filed by the defendants in the circuit court nor in the affidavits in support thereof is there any allegation that the facts upon which the motion is based were unknown to the court. On the contrary it affirmatively appears from the motion that the court knew that counsel for the plaintiffs was not present in court and it also affirmatively appears that the court knew that the motion for a new trial and the affidavit for appeal had not been filed, hence the facts being fully known to the court cannot be reached by a simple motion filed after the adjournment of the court, nor by a motion in the nature of a writ of error coram nobis. State v. Stanley, 225 Mo. 525; State v. Wallace, 209 Mo. 365. The law is that the writ of error coram nobis does not lie if the complaining party knew the fact complained of at the trial or at the time the error was made or before, or by reasonable diligence could have known it, or was otherwise guilty of neglect. 4 Ency. Pl. and Pr., 29; Jackson v. Milson, 6 Lea 515; Marble v. Van Horn, 43 Mo.App. 361; Brandon v. Diggs, 1 Heisk. 472; Hadley v. Bernero, 103 Mo.App. 563; McKinley v. Buck, 43 Mo.App. 488; 1 Freeman on Judgments, 94; Asbell v. State, 62 Kan. 214.

J. D. Harris for respondents.

(1) The circuit court has jurisdiction to entertain the motion in the nature of a writ of error coram nobis. It is a motion exclusively within the jurisdiction of the same court which rendered the judgment or made the order, and brings its own judgments before it for review and reversal or modification on account of some error of fact, not of law, affecting the validity and regularity of the proceedings and which was not brought into the issue. State ex rel. v. Riley, 219 Mo. 667; 23 Cyc. 883; Latshaw v. McNees, 50 Mo. 381; Powell v. Gott, 13 Mo. 458; Craig v. Smith, 65 Mo. 536; Cross v. Gould, 131 Mo.App. 597; State ex rel. v. White, 75 Mo.App. 257; Dugan v. Scott, 37 Mo.App. 663; State ex rel. v. Horine, 63 Mo.App. 1; State v. Heinrich, 14 Mo.App. 146. The writ of error coram nobis, and the motion which has superseded it in modern practice, has always been recognized by the courts of this State as the proper remedy where a judgment has been rendered against a party in consequence of an error of fact which does not appear on the record. State ex rel. v. Riley, 219 Mo. 667; 11 Ency. Pl. and Prac. 847; 23 Cyc. 883; Cross v. Gould, 131 Mo.App. 685; Heard v. Sack, 81 Mo. 610; Calloway v. Nifung, 1 Mo. 223; Dugan v. Scott, 37 Mo.App. 663; Latshaw v. McNees, 50 Mo. 381; Walker v. Deaver, 79 Mo. 664. There is no limitation for filing the motion in the nature of a writ of error coram nobis, and if the party filing the motion is otherwise entitled to the relief which he seeks he cannot be deprived of it on the ground that the motion was not seasonably filed. State v. Heinrich, 14 Mo.App. 149; State ex rel. v. Riley, 219 Mo. 683; Latshaw v. McNees, 50 Mo. 381; 23 Cyc. 885; Cross v. Gould, 131 Mo.App. 585; State ex rel. v. White, 75 Mo.App. 257; Powell v. Gott, 13 Mo. 458; Cross v. Gould, 131 Mo.App. 585; State ex rel. v. White, 75 Mo.App. 257; Craig v. Smith, 65 Mo. 53; Latshaw v. McNees, 50 Mo. 381; State ex rel. v. Horine, 63 Mo.App. 1. The writ of error coram nobis must be founded upon and supported by evidence aliunde the record, and its office is to correct the record on account of some error of fact, not of law, which does not appear of record. State ex rel. v. Riley, 219 Mo. 667; Cross v. Gould, 131 Mo.App. 585; Latshaw v. McNees, 50 Mo. 381. (2) The court had lost its jurisdiction of the case, but not of its records. It had authority, as well after as before the appeal, to amend its records according to the truth, so that they should accurately express the history of the proceedings which actually occurred prior to the appeal. DeKalb County v. Hixon, 44 Mo. 341; Welch v. Damon, 11 Gray 383; Chichester v. Cande, 3 Cow. 42; Mechanics' Bank v. Minthorne, 19 Johns. 244; Richardson v. Mellish, 11 Eng. C. L. 173; State v. Biesemeyer, 136 Mo.App. 671; Bank v. Allen, 68 Mo. 474; Ross v. Railroad, 141 Mo. 397; Sublette v. Railroad, 66 Mo.App. 334; Burdett v. Dale, 95 Mo.App. 514; In re Grading Bledsoe Hill, 222 Mo. 609. (3) The writ of prohibition goes only to restrain the assumed exercise of jurisdiction where none exists, and not to its erroneous or irregular exercise. State ex rel. v. Burckhartt, 87 Mo. 537; State ex rel. v. Court of Appeals, 99 Mo. 221; State ex rel. v. Klein, 116 Mo. 268. If the lower court has jurisdiction to determine the question before it, prohibition will not lie. State ex rel. v. Court of Appeals, 99 Mo. 221; State ex rel. v. Burckhartt, 87 Mo. 533. That the circuit court has jurisdiction...