The State ex rel. Conant v. Trimble

• Decision Date: 04 December 1925
• Docket Number: 25734
• Citation: 277 S.W. 916,311 Mo. 128
• Parties: THE STATE ex rel. ROY W. CONANT v. FRANCIS H. TRIMBLE et al., Judges of Kansas City Court of Appeals
• Court: Missouri Supreme Court

277 S.W. 916

311 Mo. 128

THE STATE ex rel. ROY W. CONANT v. FRANCIS H. TRIMBLE et al., Judges of Kansas City Court of Appeals

No. 25734

Supreme Court of Missouri

December 4, 1925

Writ quashed.

Erasmus C. Hall for relator.

(1) The motion filed by the defendant amounted to nothing more than a suggestion to the court, and was not a motion which defendant had a right to file. Sec. 1812, R. S. 1919; Cross v Gould, 131 Mo.App. 586. (2) Being only a suggestion to the court, it called into action the inherent power of the court, to be exercised during the term only. Marsala v Marsala, 288 Mo. 501; 15 C. J. p. 826; Bank v Porter, 148 Mo. 184. (3) Defendant's motion to set aside the decree serves the office of a motion for a new trial and was treated as such by the trial court when it set the decree aside and ordered a new trial, without saying on what ground the decree was set aside. The motion itself clearly shows that defendant prays for a new trial. The statute is made to protect third parties not connected with the record of the divorce case. And in our opinion covers every divorce decree where the court had jurisdiction of the parties and of the subject-matter. Hansford v Hansford, 34 Mo.App. 269. The opinion of the Court of Appeals (page 8) undertakes to restrict the decision in the Marsala case, supra, to the facts of that case and to have no general application. We cannot understand why. The facts in the Marsala case are very similar to the facts in the case at bar, in reference to the time the motions were filed and the purpose for which they were filed, with the advantage in favor of this case because it is a divorce case. (4) The decision of the Court of Appeals is in conflict with the cases of: Marsala v. Marsala, 288 Mo. 501; Bank v. Porter, 148 Mo. 133; Fears v. Riley, 148 Mo. 58; Rottman v. Schmucker, 94 Mo. 139; Jeude v. Sims, 166 S.W. 1053. (5) The motion filed by the defendant, being after the four days, amounted to nothing more than a suggestion. It was not a motion authorized by law. R. S. 1919, sec. 1812; Cross v. Gould, 131 Mo.App. 585. (6) The defendant in a divorce case has no right to file a motion after the four days have expired. Elliott v. Elliott, 135 Mo.App. 42; Cole v. Cole, 89 Mo.App. 228. (7) The divorce laws are special statutes, made in the interest of the public in that case only. This statute is made to protect third parties not connected with the record who become interested in a decree by a subsequent marriage with a divorcee. Hansford v. Hansford, 34 Mo.App. 269.

Walter W. Calvin and Harris Robinson for respondents.

(1) "It is a well-settled rule of practice, long recognized in this state, that, where a judgment is rendered against a party in consequence of an error of fact which does not appear on the record, the person against whom the same has been rendered may have it vacated by a motion or a petition in the nature of a writ of error coram nobis." Ex parte Toney, 11 Mo. 661; Powell v. Gott, 13 Mo. 458; Ex parte Page, 49 Mo. 294; Groner v. Smith, 49 Mo. 324; Latshaw v. McNees, 50 Mo. 384; Craig v. Smith, 65 Mo. 536; State ex rel. Hudson v. Heinrich, 14 Mo.App. 146; State ex rel. v. Horine, 63 Mo.App. 1; Downing v. Still, 43 Mo. 319; Spalding v. Meier, 40 Mo. 176; Fisher v. Fisher, 114 Mo.App. 627; Estes v. Nell, 163 Mo. 387; Mayberry v. McClung, 51 Mo. 256; Fears v. Riley, 148 Mo. 49; Payne v. O'Shea, 84 Mo. 129; Hamilton v. McLean, 139 Mo. 678; Murphy v. DeFrance, 105 Mo. 53; Lewis v. Williams, 54 Mo. 200; Ward v. Quinlivin, 57 Mo. 425; Oxley Stave Co. v. Butler County, 121 Mo. 614; Jones v. Brinker, 20 Mo. 87; Moody v. Peyton, 135 Mo. 482; Nichols v. Stevens, 123 Mo. 96; Bates v. Hamilton, 144 Mo. 1; Lee v. Harmon, 84 Mo.App. 157; Miles v. Jones, 28 Mo. 87; State ex rel. v. Riley, 219 Mo. 667; Dorrance v. Dorrance, 242 Mo. 625. (2) Courts of equity have an inherent power to set aside judgments obtained by fraud, and that power is not taken away by the statute providing for a review. Dorrance v. Dorrance, 242 Mo. 656. (3) A false affidavit of non-residence is sufficient fraud to invoke a motion in the nature of writ coram nobis. Cross v. Gould, 131 Mo.App. 585; State ex rel. Hudson v. Heinrich, 14 Mo.App. 146; State ex rel. v. Horine, 63 Mo.App. 1.

Graves, C. J. All concur; Walker, J., in result and all of the opinion except Paragraph III.

OPINION

GRAVES

Certiorari to the Kansas City Court of Appeals, to review the opinion of that court in case of Roy W. Conant, Appellant, v. Emma Dodd Conant, Respondent, on the ground that the opinion and decision of said Court of Appeals conflicts with named cases decided by this court.

Roy W Conant sued his wife, Emma Dodd Conant, for divorce, in the Circuit Court of Jackson County, and the only way the defendant was brought into court was by publication. It would be better to let the opinion of the Court of Appeals bespeak the facts. In the opinion before us that court says:

"The plaintiff in a suit for divorce, judgment for which was rendered in his favor at the December term, December 20, 1922, appeals from an order setting aside the judgment on defendant's motion filed at the same term, but forty-four days after the divorce judgment was rendered.

"Said motion to set aside was by the court continued to the March term, and set for hearing on March 17, 1923, at which it was, by leave of court, amended by interlineation, so as to insert therein the charge that plaintiff was not, either at the time of filing his petition or at the trial, a bona-fide resident of the State one whole year next prior thereto. The court, at said March term, heard defendant's evidence in support of her said motion, and continued said cause for further hearing to a later date in said March term. The abstract does not affirmatively so state, but it is conceded, that at this later date in the March term the court continued the cause for further hearing to the June term, June 16, 1923, on which date the court, after hearing further evidence, sustained said motion, and set aside the decree rendered at the December term and reinstated the cause on the docket.

"Plaintiff at all times duly objected to any hearing of the motion upon the ground that the court had no jurisdiction, after the expiration of the December term, at which the judgment was rendered, to entertain said motion or to set aside the judgment, the said motion, although filed at the December term, not having been filed within four days after the rendition of the judgment. The plaintiff offered no evidence in opposition to said motion, and, when the same was sustained, promptly filed a motion for new trial on said motion, and, when this was likewise overruled, took the usual steps to perfect his appeal, which the court allowed.

"The petition for divorce was filed October 14, 1922, and alleged desertion occurring on October 5, 1921, as the ground thereof. Defendant was summoned by publication as a non-resident, but, not having any actual knowledge of the suit, did not appear, answer, or make any defense, but, so the judgment recites, made default.

"Defendant raises no question as to plaintiff's right to appeal, but she has filed a motion to dismiss the appeal, based solely on the ground that appellant did not bring up the evidence introduced in support of the motion to set aside the judgment, but has merely contented himself with a recitation in the record that 'the defendant (respondent herein) offered testimony and evidence tending to prove all the allegations of her motion.'

"So far as concerns plaintiff's attack upon the power of the court to entertain and act upon the motion at the subsequent term, it would not be necessary to bring up the evidence in support of said motion unless, perhaps, to show that the court sustained the motion on matters relating to errors committed in the course of the divorce hearing, which would require a motion for new trial, filed within four days, as will be more particularly hereinafter dealt with and set forth. But, as the motion to set aside is based on grounds other than those which can only be included in a motion for a new trial, and as the action of the court is presumed to be right, we do not see wherein the respondent could be injured by a failure to bring up the evidence, or be entitled to have the appeal dismissed upon that ground. Respondent's motion to dismiss the appeal on the ground specified is, therefore, overruled.

"In its nature, the divorce judgment, considered wholly by itself, and, in the absence of any voluntary action against it on the part of the court, or motion filed against it at the judgment term, was a final judgment -- that is -- to state it a little more accurately, it was a judgment that upon the expiration of the term, the court itself acted upon sua sponte, or it was attacked by a motion to which the law gives the power to suspend its finality and carry the judgment over to another term and until the motion is disposed of. It is clear that, in the absence of anything of the kind or of anything done by the court on its own initiative during the term, the power of the court over the judgment, or to change it in any way by an order in that case, ceases with the expiration of the term. [Lovitt v. Russell, 138 Mo. 474, 483; Hall v. Lane, 123 Mo. 633, 636.] But by virtue of Section 1456, Revised Statutes 1919, motions for new trial and in arrest, if filed within four days after judgment and at the same term the judgment was rendered, may attack it and suspend the finality of the judgment, carrying it over to a subsequent term and until they are disposed of. The question presented then is, inasmuch as the statute gives this power to motions filed within four days during the term, can such effect be accorded to other motions...