State ex rel. Sterling v. Shain.

• Decision Date: 14 June 1939
• Docket Number: No. 36431.,36431.
• Citation: 129 S.W.2d 1048
• Parties: STATE OF MISSOURI at the relation of W.H. STERLING, Relator, v. HOPKINS B. SHAIN ET AL., JJ.
• Court: Missouri Supreme Court

129 S.W.2d 1048 STATE OF MISSOURI at the relation of W.H. STERLING, Relator,
v.
HOPKINS B. SHAIN ET AL., JJ. No. 36431. Supreme Court of Missouri. Division One, June 14, 1939.

[129 S.W.2d 1049]

Certiorari.

OPINION AND RECORD OF THE COURT OF APPEALS QUASHED.

Johnson, Garnett & Quinn for relator.

(1) Under the principles declared by this court in Smoot v. Judd, 184 Mo. 508, and numerous later authorities, the plaintiff, bound by the judgment in the former case, is not entitled to go back of that judgment and, by showing that the records of the clerk which constitute evidence of the default judicially found by the court are false, have the same set aside in equity, plaintiff's only remedy, if the clerk's record is untrue, being an action at law against the clerk for his alleged negligence; and respondent Judges, by failing to apply that rule to the facts in the case at bar, have failed to follow the latest and controlling decisions of this court. Smoot v. Judd, 184 Mo. 508; Reiger v. Mullins, 109 S.W. 26; Ellis v. Nuckolls, 140 S.W. 867; Cherry v. Wertheim, 25 S.W. (2d) 118; Krashin v. Grizzard, 31 S.W. (2d) 984. (2) The interlocutory judgment contains a judicial finding that no answer was filed in the prior cause, and that defendant therein was in default. There is no evidence other than the oral testimony of the witness Gilwee that the same is incorrect. Respondent judges, in holding that such finding may be impeached by parol evidence, have decided this issue contrary to the repeated holdings of this court that the solemn judicial finding and judgment of a court cannot be corrected or impeached by parol. Before the judgment can be set aside, the interlocutory judgment must first be corrected (if incorrect) and made to speak the truth. This proceeding, therefore, is in the nature of an equitable proceeding nunc pro tunc to correct the recitals of the interlocutory judgment. Such an alteration of the interlocutory judgment cannot be made without some written record upon which to base it. It cannot be done by parol. Belkin v. Rhodes, 76 Mo. 643; Atkinson v. Railroad Co., 81 Mo. 50; Ward v. Bell, 137 S.W. 1026; Burton v. Burton, 288 Mo. 531, 232 S.W. 476; Osagera v. Schaff, 240 S.W. 124; State v. Whalen, 248 S.W. 931; Becher v. Deuser, 169 Mo. 159; Jackson v. Chestnut, 131 S.W. 747.

J.R. Rose and W.J. Gilwee for respondents.

(1) The only question presented herein is whether or not there was a conflict between the latest controlling cases of this court and the opinion of the Court of Appeals. (a) This ruling is fully set out by this court in the recent case of State ex rel. v. Shain, 119 S.W. (2d) 220. (b) Respondents have followed the latest controlling decisions of this court. Krashin v. Grizzard, 31 S.W. (2d) 984; State ex rel. v. Trimble, 274 S.W. 716; Overton v. Overton, 37 S.W. (2d) 567. (c) There is no conflict between the opinion and the decisions of this court in Smoot v. Judd, 185 Mo. 508. (2) This court will not pass upon the weight of the evidence, credibility of witnesses, or substitute its own opinion for that of the Court of Appeals. State ex rel. v. Allen, 253 S.W. 1014; State ex rel. v. Shain, 119 S.W. (2d) 222; Creamer v. Bivert, 214 Mo. 479.

DOUGLAS, J.

This is an original proceeding in certiorari to review for conflict with our decisions the opinion of the respondents in Anderson Motor Service Company v. Sterling (Mo. App.), 121 S.W. (2d) 275. That was an action in equity to set aside a default judgment obtained at a prior term by the defendant Sterling, the relator in this proceeding, against the plaintiff company and to enjoin the enforcement of the judgment. [1] The trial court found for the plaintiff and set aside the judgment, which finding was affirmed by the respondents in the opinion under review. As we are limited to the facts stated by the respondents in determining the question of conflict, we shall set them out precisely as they appear in the opinion.

"The following pertinent facts are not in dispute. Defendant in this suit, who was plaintiff in the former suit, sued for damages growing out of breach of contract. The petition was regularly filed and personal service had. The last day for pleading in the May Term of court, to which the cause was returnable, was May 15. No answer or other pleading was ever made of record and the court records at all time showed defendant in that case to be in default. On May 22 plaintiff moved for interlocutory judgment alleging no pleadings had been filed, that the time for filing same had elapsed, that there had been personal service of process, and that under the rules and practice of court no extension of time for pleading had been asked or granted. Evidence was heard on the motion and the above facts found and entered of record by judgment of the court; and the court further found defendant to be in default.

"Thereafter, the cause was listed for trial, and a special notice of its setting for final hearing was published, day by day, in the Daily Record, a paper of general circulation among lawyers in Kansas City, and used for such purposes by the courts and the profession, until the 7th day of June, 1933. On that day the court rendered its final judgment in the sum of $2730 and costs. Notice of the entry of the judgment was published in the Daily Record. After the adjournment of the May Term of the court plaintiff in the original suit caused an execution to be issued on this final judgment, and the defendant therein brought the present action to be set aside the judgment.

"It is not claimed, in the present action, that this defendant was guilty of any fraud or deceit...