Spotts v. Spotts

• Decision Date: 20 December 1932
• Citation: 55 S.W.2d 984,331 Mo. 942
• Parties: Edith C. Spotts, James B. Campbell, Frank W. Campbell, Helen C. McGinnis, Robert Eakin Campbell v. Baylor M. Spotts and Frank W. Campbell, Trustees Under the Will of Robert Campbell; Baylor M. Spotts, Jean Laird Stewart, Ellsworth Stewart, Katherine Edith Stewart, Dorris Jean Stewart, Margaret E. Stephens, Alexander F. Stephens, Katherine Ann Spotts, Ella Campbell, Elizabeth Hammer, Edith Connell, John H. Connell, John D. Connell, Sarah Ruth Campbell, Sabra E. Campbell, Lillian C. Dennis, Charles F. Dennis, Jr., Everett H. Dennis, Frances G. Campbell, Robert L. Campbell, Evelyn S. Campbell, Letetia Campbell, Jean Campbell, Robert F. Campbell, Karl McGinnis, Robert C. McGinnis, James W. Campbell (Defendants), Frances G. Campbell and Lillian C. Dennis, Guardian, Appellants
• Court: Missouri Supreme Court

55 S.W.2d 984

331 Mo. 942

Edith C. Spotts, James B. Campbell, Frank W. Campbell, Helen C. McGinnis, Robert Eakin Campbell v. Baylor M. Spotts and Frank W. Campbell, Trustees Under the Will of Robert Campbell; Baylor M. Spotts, Jean Laird Stewart, Ellsworth Stewart, Katherine Edith Stewart, Dorris Jean Stewart, Margaret E. Stephens, Alexander F. Stephens, Katherine Ann Spotts, Ella Campbell, Elizabeth Hammer, Edith Connell, John H. Connell, John D. Connell, Sarah Ruth Campbell, Sabra E. Campbell, Lillian C. Dennis, Charles F. Dennis, Jr., Everett H. Dennis, Frances G. Campbell, Robert L. Campbell, Evelyn S. Campbell, Letetia Campbell, Jean Campbell, Robert F. Campbell, Karl McGinnis, Robert C. McGinnis, James W. Campbell (Defendants), Frances G. Campbell and Lillian C. Dennis, Guardian, Appellants

Supreme Court of Missouri

December 20, 1932

Appeal from Saline Circuit Court; Hon. Ralph Hughes, Judge.

Affirmed.

Wm D. Bush, Wilbur F. Hall and Ernest D. Martin for appellants.

(1) On November 8, 1923, the court did not have jurisdiction to hear or to determine said cause, for the reason there was pending in the same court, between the same parties, another suit entitled Campbell v. Spotts, for the same purpose, of the same import, for the construction of the same will, on the answer of a guardian ad litem, duly appointed undischarged, with an answer pending for the minor defendants, in the nature of a cross-bill asking the court to ascertain and determine the title to real estate between them and plaintiffs. (a) Another action pending: Smith v Sedalia, 244 Mo. 107; Michelin v. Webb, 127 S.W. 948. (b) Jurisdiction is never waived: State ex rel. v. Trimble, 317 Mo. 751; State ex rel. v. Trimble, 297 Mo. 124; Jones v. Sanderson, 287 Mo. 183. (c) Infants or minors cannot waive: Revely v. Skinner, 33 Mo. 98; Carson v. Hecke, 282 Mo. 580; Newport v. Hatton, 231 P. 987; Tanner v. Schultz, 223 P. 174; 31 C. J. 1143. (2) In Campbell v. Spotts plaintiffs could not take a nonsuit after submitting the cause to the court: Sec. 960, R. S. 1929; State ex rel. v. McQuillen, 246 Mo. 517; Barron v. Store Co., 292 Mo. 195; Hatch v. Ferguson, 57 F. 966; Rutledge v. Dent, 308 Mo. 558. (a) Judgment for minors in Campbell v. Spotts, but clerk failed to record it: Landau v. Ohio Leather Co., 221 S.W. 405. (b) Evidence offered showed the hearing of November 8, 1923, was not adjudication, nor a judicial determination of issues: Robinson v. Floesch, 236 S.W. 336; Newport v. Hatton, 231 P. 987; (c) Rights of minors were disregarded: Revely v. Skinner, 33 Mo. 98; Carson v. Hecke, 282 Mo. 580; Newport v. Hatton, 231 P. 987; Tanner v. Schultz, 223 P. 174; Coffee v. Higbee, 298 S.W. 766; Hatch v. Ferguson, 57 F. 966; (d) Court refused to follow directions of statute or will: Sec. 567, R. S. 1929; Hays v. St. L. Union Trust Co., 317 Mo. 1028, 298 S.W. 91; Bond v. Riley, 296 S.W. 401; Wiggins v. Perry, 271 S.W. 815; Schee v. Boone, 295 Mo. 212; Lane v. Garrison, 293 Mo. 530; Wooley . Hays, 285 Mo. 566; Mathews v. Van Cleve, 282 Mo. 19; Dyer v. St. L. Trust Co., 286 Mo. 481.

Duggins & Johnson and Perry S. Rader for respondents.

(1) A writ of error coram nobis is not available to correct errors of law. Judge Allen wrongly construed the will of Robert Campbell, that was an error of law, and a writ of error coram nobis cannot be used to correct it. The whole burden of the application for the writ is that Judge Allen did not properly construe the will; that he adjudged and decreed that the will gave the real estate in fee simple absolute to the plaintiffs, whereas the will plainly on its face devised the property to trustees for the benefit of plaintiffs and the appellants and their other bodily heirs. That was an error of law, if error at all. Simms v. Thompson, 291 Mo. 493; Cross v. Gould, 131 Mo.App. 587; Jeude v. Simms, 258 Mo. 40; 23 Cyc. 883D; 2 R. C. L. 307, sec. 262. (2) A writ of error coram nobis is available only to correct errors of fact dehors the record. It is available only to set aside a judgment for errors of fact, which had the court known it would not have rendered the judgment. There is no allegation in appellants' motion that there was any such fact. It is not alleged that there was a fact in existence which had the court known it would not have rendered the judgment sought to be set aside. Simms v. Thompson, 291 Mo. 493; Cross v. Gould, 131 Mo.App. 587; Jeude v. Sims, 258 Mo. 40; 33 Cyc. 883D; State ex rel. v. Riley, 219 Mo. 682. (3) Fraud is not a ground for the writ of error coram nobis. Simms v. Thompson, 291 Mo. 529; Jeude v. Sims, 258 Mo. 42; McFadin v. Simms, 309 Mo. 333. Fraud was not an issue in the case which resulted in the judgment, and was not an issue out of which an error of fact could arise. The error of fact to be corrected by the writ of error coram nobis must be an error of fact pertinent to the issues in the case in which the judgment was rendered, and not a mere extraneous matter. Jeude v. Sims, 258 Mo. 41.

Hyde, C. Ferguson and Sturgis, CC., concur.

OPINION

HYDE

This is an application by appellants for a writ of error coram nobis, to set aside a judgment against them and other defendants, in a suit brought by the beneficiaries of the will of Robert Campbell to determine the title to certain real estate devised by the will of Robert Campbell. This required a construction of the will and is the same judgment plaintiffs' brother, Robert L. Campbell sought to reverse by a writ of error from this court. That case is decided concurrently herewith. [Spotts v. Spotts, 331 Mo. 917, 55 S.W.2d 977.] Before the writ of error in that case was sued out, appellants had filed their motion herein for a writ of error coram nobis to set the judgment aside.

Appellants' motion set up the following grounds for vacating the judgment:

First: That the judgment failed to follow the plain language and intent of Robert Campbell.

Second: That at the time judgment was rendered another suit of like nature was pending between the same parties in the trial court.

Third: That the amended petition, upon which judgment was rendered, did not incorporate the will of Robert Campbell therein nor attach it as an exhibit, with the intent of misleading the court.

Fourth: That the amended petition did not state a cause of action.

Fifth: That the special judge who tried the case was without jurisdiction because irregularly appointed.

Sixth: That the judgment amounted to a wanton taking of the property of minors without any consideration and without due process of law.

Seventh: That fraud was practiced by plaintiffs in the procurement of the decree because plaintiffs knew the terms of the will and the legal effect thereof, knew that they had only a life estate in the income from trust property and that fee simple title vested in the bodily heirs of the plaintiffs; that plaintiffs, intending to cheat and defraud the minor heirs, commenced suit in the United States District Court afterwards dismissed the same when the judge thereof was about to decide the cause adversely to plaintiffs; that plaintiffs thereafter commenced a suit in the Circuit Court of Saline County for the same purpose but abandoned that case when the judge indicated that his decision would be against plaintiffs; that, thereafter, when the judge who had heard the previous case retired from office, plaintiffs commenced another suit in the Circuit Court of Saline County in which they purposely misstated the provisions of the will; that they procured the appointment of another guardian ad litem for the minor defendants because the guardian ad litem in the other suit made a defense for the minors; that they obtained a trial before a judge unfamiliar with the facts when the former case had never been dismissed; that they obtained a decree, which is a misconstruction of the plain language of the will; and that the decree was the result of collusion and conspiracy between plaintiffs and the trustees under the will of Robert Campbell.

The motion also alleged that the decree violated Section 10 of Article 1 of the Constitution of the United States by impairing the obligation of contracts and violated both the Constitution of the United States and the Constitution of Missouri by taking property without due process of law. The motion further alleged that plaintiffs did not own the fee simple title, were not in possession nor entitled to possession nor to any present vested interest in the real estate conveyed to the trustees by the will of Robert Campbell, "but as an error of fact, the court believed these allegations of plaintiffs, and supposed it to be a fact that plaintiffs herein were the absolute owners in fee simple title of the aforesaid real estate, whereas, they owned nothing, under the terms of said will as to such real estate, having only the right to share in the income therefrom, which the trustees were directed to collect and use for the support of plaintiffs and their families; and had the court known such fact, or had such fact been presented to the court, it would not then have rendered such judgment or decree."

The original plaintiffs filed an answer in which they denied the allegations of fraud and alleged their own version of the facts about the various suits, which were that the parties were different since the first suit...