Townsend v. Boatmen's Nat. Bank

• Decision Date: 04 March 1941
• Docket Number: No. 25600.,25600.
• Citation: 148 S.W.2d 85
• Parties: TOWNSEND et al. v. BOATMEN'S NAT. BANK et al.
• Court: Missouri Court of Appeals

148 S.W.2d 85

TOWNSEND et al. v. BOATMEN'S NAT. BANK et al.

No. 25600.

St. Louis Court of Appeals. Missouri.

March 4, 1941.

Appeal from St. Louis Circuit Court; Eugene L. Padberg, Judge.

"Not to be reported in State Reports."

Suit by Elmira Townsend, George Smith and others against the Boatmen's National Bank, named and appointed as executor and trustee under the alleged last will of Hugh W. Thomasson, deceased, to contest the will. From a judgment sustaining the will, the plaintiffs appealed to the Supreme Court, which entered a judgment, 104 S. W.2d 657, affirming the judgment. Afterward the Circuit Court, on motion of the named defendant, vacated the judgment as to costs, and taxed the costs against the plaintiffs. The Circuit Court granted the motion by George Smith in the nature of a writ of error coram nobis to vacate the judgment taxing costs against the plaintiffs, in so far as the judgment affected him, and the defendants appeal.

Judgment affirmed.

James V. Frank, Charles Claflin Allen, Jr., and Franklin E. Reagan, all of St. Louis, for appellants.

Albert E. Hausman, of St. Louis, for respondent George Smith.

SUTTON, Commissioner.

This suit, in which George Smith was named as one of the plaintiffs, was commenced in the Circuit Court of the City of St. Louis to contest the will of Hugh W. Thomasson, deceased. The suit was prosecuted to final judgment whereby the will was sustained and the costs of the suit amounting to approximately $2,500 were taxed against Thomasson's estate. On appeal to the Supreme Court the judgment of the Circuit Court was affirmed. See Townsend v. Boatmen's National Bank, 340 Mo. 550, 104 S.W.2d 657.

Afterwards, the court, on motion of the Boatmen's National Bank, vacated the judgment as to costs and taxed the costs against the plaintiffs.

In the present proceeding Smith seeks by motion in the nature of a writ of error coram nobis to vacate the judgment taxing the costs against the plaintiffs in so far as the judgment affects him. In the motion, which was filed subsequent to the term at which the order was made, Smith alleges as grounds therefor that his name was inserted as a plaintiff in the suit without his knowledge or consent; that he never participated in any proceeding in the suit and did not know that he was a party thereto and did not know that a judgment for costs had been rendered against him until shortly before the filing of the motion; that he at no time authorized any one to insert his name as a party plaintiff; that he signed no papers whatsoever in connection with said cause and never appeared in said cause; and prays that his name be stricken from the record as a plaintiff in the cause.

Plaintiff testified that he did not authorize any one whatsoever or employ or give authority to any attorney or attorneys to enter his appearance or represent him in the case; that he did not know or have any acquaintance with either of the attorneys who commenced and prosecuted the case on behalf of the plaintiffs, until after he learned that he had a judgment for costs against him, when he met one of the attorneys; that he first learned that there had been a judgment rendered against him for costs when he was having the title run down to a piece of real estate he owned; that prior to that time he had no knowledge or information from any source whatsoever that there was any judgment of any kind rendered against him for costs; that as soon as he learned that there was a judgment for costs against him he employed counsel, and this proceeding was commenced. This testimony stands uncontradicted in the record.

The court, after hearing the evidence, ordered Smith's name stricken from the record as a plaintiff in the cause. Defendants appeal.

Defendants contend here that the circuit court had no jurisdiction to alter the judgment for costs after the judgment term had expired. They put this contention on the...