State ex rel. Sterling v. Shain
Decision Date | 14 June 1939 |
Docket Number | 36431 |
Citation | 129 S.W.2d 1048,344 Mo. 891 |
Parties | State of Missouri at the relation of W. H. Sterling, Relator, v. Hopkins B. Shain et al., JJ |
Court | Missouri Supreme Court |
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. All concur, except Hays, P. J., absent.
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. 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.
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