Schneider v. Schneider

• Decision Date: 05 May 1925
• Docket Number: No. 18909.,18909.
• Parties: SCHNEIDER v. SCHNEIDER.
• Court: Missouri Court of Appeals

273 S.W. 1081

SCHNEIDER v. SCHNEIDER.

No. 18909.

St. Louis Court of Appeals. Missouri.

May 5, 1925.

Rehearing Denied July 7, 1925.

Appeal from Circuit Court, St. Louis County; G. A. Wurdeman, Judge.

"Not to be officially published."

Suit by Annie Schneider against Louis Schneider, in which, subsequent to a decree of divorce in favor of plaintiff, the latter obtained a judgment for alimony and attorney's fees. Defendant filed a petition to set aside such judgment, and from a judgment granting him that relief, plaintiff appeals. Reversed, with directions.

Max Sigoloff, of St. Louis, for appellant.

Ralph & Baxter and J. C. Kiskaddon, both of Clayton, for respondent.

BRUERE, C.

This is an action for divorce, brought by the wife, on October 6, 1921, in the circuit court of St. Louis county. Personal service was duly had on the defendant on said day, and cause was returnable to the January term, 1922, of said court. At said term, and on the 4th day of March, 1922, the defendant having made default, the court heard the evidence, granted the plaintiff a decree of divorce, and entered a judgment against the defendant for alimony as follows:

"That said plaintiff have and recover of said defendant the sum of $35 per week for her support and maintenance, said sum to be paid each successive week, beginning March 6, 1922, and the further sum of one hundred and fifty dollars ($150.00) attorney's fee, and that execution issue therefor."

Thereafter, on December 19, 1922, during the September term, 1922, of said court, plaintiff filed her affidavit in support of her prayer for execution against defendant to collect the sum of $1,442.15, the amount of alimony then accrued under said judgment. Pursuant to said application and affidavit, execution was duly issued on the 6th day of February, 1923, out of said court to the sheriff of the county of St. Louis, Mo. Thereafter, on the 29th day of May, 1923, defendant filed his petition, whereby it is sought to set aside the said judgment for alimony and attorney's fees and to quash the said execution issued thereon. On October 15, 1923, and during the September term, the court sustained the petition and set aside and for naught held the said judgment for alimony, and further quashed the execution theretofore issued to recover said alimony, and from that judgment the plaintiff has appealed to this court.

The petition recites substantially the facts hereinbefore stated, and as ground for setting aside the judgment for alimony and quashing the said execution alleges:

"That pending said suit, and before the return day of said writ, to wit, on the 17th day of October, 1921, plaintiff and her attorney of record, in a conference with this defendant, entered into an agreement with defendant to settle property rights, under which agreement defendant was to convey to one Samuel Seligsohn, a brother of plaintiff, in trust for the sole and separate use of plaintiff, certain real estate, and to plaintiff the household furniture then in a house on said real estate, in settlement of all property rights and claims between the parties hereto, including alimony, support money, maintenance, and suit money, and all other claims involving the payment of money or property that defendant might be subjected to as a result of said divorce suit; that the defendant, in good faith, in pursuance of said agreement, and without any other or valuable consideration, did, on said 17th day of October, 1921, execute a deed conveying said real estate, described and known as No. 6262 Enright avenue, in University City, St. Louis county, Mo., to said Seligsohn, in fee and in trust for the sole and separate use of plaintiff, which deed is recorded in the records of the recorder of deeds, St. Louis county, Mo., in Book No. 523, at page 528, and also deliver to plaintiff said personal property; that said real estate is of the reasonable value of $20,-000, subject to a deed of trust of $10,000; that said personal property is of the reasonable value of $4,000; that, relying upon said agreement, transaction, and conveyance, defendant did not appear and was not present at the trial of said cause; that at said trial plaintiff and her attorney willfully, intentionally, and fraudulently concealed from the court the fact of said agreement, conveyance, and transaction, and on the 4th day of March, 1922, recovered judgment against defendant, in addition to a decree of divorce, for $35 per week alimony and $150 for attorney's fee; that in obtaining said judgment for alimony and attorney's fee plaintiff was guilty of and practiced a fraud upon the court, in this, to wit: That She failed to advise and inform the court of the property settlement hereinbefore set forth; that although said petition for divorce, when filed, truthfully alleged that said property was the property of defedant yet at the time of the trial said property had ceased to be the property of defendant, and was at said time the property of plaintiff, and held by said trustee for the sole and separate use of said plaintiff in accordance with said agreement."

Plaintiff filed her motion to strike from the files the defendant's petition to set aside the judgment for alimony, which motion the court overruled, and, to which action of the court plaintiff duly excepted and filed her term bill of exceptions. Thereafter plaintiff filed her answer, which contains a general denial, coupled with the plea that the matters and things set forth in the petition did not state facts sufficient to warrant the court to grant the relief prayed therein, for the following reasons:

"(1) That said petition is in the nature of a collateral proceeding, seeking to attack the validity of a judgment, and to quash an execution issued on it.

"(2) That the judgment herein, which defendant is seeking to have vacated and set aside, is a final judgment arising out of alimony which accrued before application was made by defendant to have modified, and therefore this court is without power to revoke or modify said judgment.

"(3) That said defendant's petition is in the nature of a writ of error coram nobis, seeking to vacate and set aside a judgment, although it appears from defendant's petition that no infirmity exists in the judgment and proceedings, nor any defect in the execution issued on said judgment.

"(4) That the judgment in favor of plaintiff in said cause accrued during the September term, 1922, of this court; that at the time of the filing of said petition by defendant it was subsequent to said September term, 1922, and said judgment therefore became a final judgments and this court has no authority to modify or disturb its judgment after the lapse of said September term."

The evidence adduced by the defendant tends to prove the allegations of the petition, and that on October 17, 1921, after the service of the defendant of the said writ of summons, and before the return day of the writ, the defendant conveyed to plaintiff nearly all the property owned by him, and of the reasonable value of $13,000, and that at said trial the trial court was not informed of said conveyance. In setting aside the judgment for alimony and quashing the execution issued thereon the court made a finding:

"That the property conveyed by the defendant to the plaintiff was adequate and sufficient in value to recompense plaintiff for all alimony due her by virtue of said decree of divorce."

The sole question in the case is whether the trial court had jurisdiction to vacate the judgment for alimony, and quash the execution issued thereon, on the petition filed herein.

It is contended by defendant, respondent herein, that the petition upon which the judgment appealed from in this case is based is an application for the common-law writ of error coram nobis, and that under the facts adduced said writ is available for relief on account of the alleged fraud practiced upon the court in the procurement of the judgment for alimony. The office of the writ of error coram nobis is to bring the attention of the court to and obtain relief from an error of fact, not...