Wagner v. Shelly

• Decision Date: 01 March 1948
• Docket Number: No. 20937.,20937.
• Citation: 210 S.W.2d 394
• Parties: LOUIS WAGNER, RESPONDENT, v. RHEA MERTEL SHELLY, EXECUTRIX OF THE ESTATE OF SOLON S. SHELLY, DECEASED, APPELLANT.
• Court: Missouri Court of Appeals

210 S.W.2d 394

LOUIS WAGNER, RESPONDENT, v. RHEA MERTEL SHELLY, EXECUTRIX OF THE ESTATE OF SOLON S. SHELLY, DECEASED, APPELLANT.

No. 20937.

Kansas City Court of Appeals. Missouri.

Opinion delivered March 1, 1948.

Appeal from Circuit Court of Jackson County. — Hon. John F. Cook, Judge.

REVERSED AND REMANDED WITH DIRECTIONS.

Ben G. Clark for appellant.

(1) The court erred in overruling defendant's motion in the form of a writ of error coram nobis to set aside the judgment, because the motion was the proper remedy, it was supported by competent and sufficient evidence, and should have been sustained. General Motors Acceptance Corp. v. Lyman, 78 S.W. 2d 109; State v. Stanley, 225 Mo. 534, 125 S.W. 475; Jeude v. Sims, 258 Mo. 26, 166 S.W. 1048; Cross v. Gould, 131 Mo. App. 585, 110 S.W. 672; Haight v. Stuart, 31 S.W. 2d 241; Dusenberg v. Rudolph, 30 S.W. 2d 94; Section 91, Civil Code of Missouri (Page 382, Laws of 1943); Rules 14, 15 and 17 of the Circuit Court of Jackson County, Missouri. (2) The court erred in overruling defendant's motion to set aside the judgment, because the motion was also the proper remedy under Section 1267, Revised Statutes of Missouri, 1939, in that defendant's right to relief is established by the record itself, because plaintiff's amended petition fails to state a cause of action that will support a judgment in his favor. Wooten v. Friedberg, 198 S.W. 2d 1; Goodman v. Meyer, 38 S.W. 2d 268; Guhman v. Grothe, 142 S.W. 1, 346 Mo. 427. (3) Plaintiff's amended petition failed to state a cause of action, because it alleged an agreement to procure or facilitate divorce, which is illegal, void and unenforceable, and against public policy. Jones v. Jones, 30 S.W. 2d 49; Blank v. Nohl, 20 S.W. 477, 112 Mo. 159, 18 L.R.A. 350; McDonald v. McDonald, 161 S.W. 850; Curry v. Dahlberg, 110 S.W. 2d 742; Theisen v. Keough, 1 Pac. 2d 1015, 115 Cal. App. 353; Section 586, Restatement of the Law of Contracts. (4) The court erred in making the order substituting the executrix of the estate of the deceased defendant, because the record shows on its face that there was no compliance with the requirement of Section 22 of the Civil Code of Missouri and Rule 3.08 of the Supreme Court by which the court did or could acquire jurisdiction over the person of the executrix.

Walter A. Raymond for respondent.

(1) The burden is on appellant to point out prejudicial and reversible error. Hellums v. Randol, 225 Mo. App. 1092, 40 S.W. 2d 500; Martin v. Bulgin, 111 S.W. 2d 963; Longmire v. Diagraph-Bradley Stencil Machine Corporation, 237 Mo. App. 553, 173 S.W. 2d 641; Mueller v. Schein, 352 Mo. 180, 176 S.W. 2d 449. (2) Assuming in accordance with appellant's contention that the action taken by respondent was insufficient to substitute appellant this proceeding to vacate the judgment stands abated for want of revival within a year and the original judgment in respondent's favor stands in full force and effect. Poindexter v. Marshall, 193 S.W. 2d 622; Scott v. Rees, 300 Mo. 123, 253 S.W. 998; Wormington v. City of Monett, 204 S.W. 2d 264. (3) The writ of error coram nobis is a discretionary writ. Appellant has here wholly failed to show that in denying the writ the trial court abused his judicial discretion. State v. Wallace, 209 Mo. 358, 108 S.W. 542; Pike v. Pike, 193 S.W. 2d 637, 641 (10); Quattrochi v. Quattrochi, (Mo. App.) 179 S.W. 2d 757, 760 (8); Badger Lumber Co. v. Goodrich, (Mo.) 184 S.W. 2d 435, 439. (4) The writ of error coram nobis does not lie to correct judgments on the grounds of fraud, accident or mistake. The errors of fact to be corrected by a writ of error coram nobis must be errors of fact pertinent to the issues in the case, and not mere extraneous matters. On the face of this record the remedy invoked is not available but the error charged can only be reached by a separate suit in equity. Black v. Banks, 327 Mo. 341, 37 S.W. 2d 594; Quattrochi v. Quattrochi, 179 S.W. 2d 757; Ross v. Davis, 234 Mo. App. 1079, 139 S.W. 2d 542; Haines v. Jeffrey Mfg. Co., 31 S.W. 2d 269; Force v. Margulius, 33 S.W. 2d 1023; Kings Lake Drainage Dist. v. Winkelmeyer, 228 Mo. App. 1102, 62 S.W. 2d 1101. (5) As the defendant's motion had been tried and submitted to the trial court before the defendant's death the order thereon could have been entered nunc pro tunc as of the date of submission. The failure to so enter it was not prejudicial to appellant and may be corrected here. Batson v. Peters, (Mo.) 89 S.W. 2d 46; Gambell v. Irvine, 102 S.W. 2d 784; Wormington v. City of Monett, (Mo. en Banc) 204 S.W. 2d 264; Coulter v. Phoenix Brick & Construction Co., 131 Mo. App. 230, 110 S.W. 655; Siberell v. St. Louis-San Francisco Ry. Co., 320 Mo. 916, 9 S.W. 2d 912. (6) The claimed illegality of the contracts involved is not apparent from the face of the record nor from the evidence introduced at the trial. That was an affirmative defense which defendant did not attempt to set up until it was set up in the motion to set aside judgment. Such defense is not now available to appellant. Brooks v. McCray, 145 S.W. 2d 985; Meyerhardt v. Fredman, 131 S.W. 2d 916, 918 (6); Buchholz v. Manzella, 158 S.W. 2d 200, 202; National Bank of Commerce v. Flanagan Mills & E. Co., 268 Mo. 547, 188 S.W. 117; Barnes v. Boatmen's Natl. Bank of St. Louis, 348 Mo. 1032, 156 S.W. 2d 597; Brunswig v. Bush, 221 S.W. 759, 761 (Mo. App.); Beckler v. Yates, (Mo.) 338 Mo. 208, 89 S.W. 2d 650; Weaver v. Lehman, 341 Mo. 378, 107 S.W. 2d 81, 87; Bishop v. Bishop, 162 S.W. 2d 332; Harrison v. Slayton, 49 S.W. 2d 31; Robinson v. Martin Wunderlich Const. Co., (Mo. App.) 72 S.W. 2d 127, 129 (3); Weatherford v. Spiritual Christian Union Church, 163 S.W. 2d 916; Poindexter v. Marshall, 193 S.W. 2d 622, 624 (4).

ON MOTION FOR REHEARING

CAVE, P.J.

In his motion for rehearing respondent states that our opinion is in conflict with the decision of the Supreme Court in the case of Wormington v. City of Monett, 204 S.W. (2d) 264, because there was no order of substitution made within a year after the death of Solon S. Shelly. The record discloses that the motion coram nobis of defendant, Solon S. Shelly, was under advisement by the court at the time he died on April 30, 1946, and that plaintiff filed his motion for substitution on July 23, 1946; and the order sustaining the motion and making substitution was entered on October 12, 1946. Thus the motion was filed and the order made within the year and this fully complies with Sec. 22 of the Civil Code, Laws Mo. 1943, p. 364, and is not in conflict with the Supreme Court decision above cited.

We think the executrix, Rhea Mertel Shelly, has waived the question of service of plaintiff's motion for substitution but, if not, the motion is still pending and was filed within the year, and that is sufficient, because Sec. 22, supra, does not require the order of substitution to be made within the year; and the holding in the Wormington case, supra, does not so hold.

The motion for rehearing and the motion to transfer to the Supreme Court are overruled. All concur.

APPEAL FROM JACKSON COUNTY CIRCUIT COURT

CAVE, P.J.

On April 20, 1945, plaintiff filed his first amended petition in two counts, alleging, in substance, in count one that he was a duly licensed practicing attorney; that on or about October 24, 1944, the defendant, Solon S. Shelly, employed plaintiff to institute a suit for divorce in behalf of Helen R. Anderson and against George N. Anderson, and agreed to pay plaintiff for his services the sum of $1000; that said suit was instituted on November 4, 1944, and was dismissed on January 13, 1945, because said Helen R. Anderson and her husband had resumed marital relations; that he demanded payment of $1000 from defendant, which defendant failed to pay. In count two plaintiff alleged that defendant, Solon S. Shelly, employed him to institute suit for divorce in behalf of Helen R. Anderson against George N. Anderson, which suit was filed on January 20, 1945, on which date the defendant agreed to pay plaintiff the sum of $1000; that plaintiff performed various services in connection with said divorce suit, but was discharged by Helen Anderson before the trial thereof; that he demanded payment of $1000 from defendant, which defendant failed to pay.

On May 4, 1945, defendant, Solon S. Shelly, filed answer in the form of a general denial on both counts of plaintiff's petition. On the same day the Clerk of the Assignment Division of the circuit court of Jackson County placed the case upon the jury trial docket and made out a white card therefor in accordance with Rule 14 of said circuit court. Subsequently the Assignment Clerk placed the case, by mistake, upon the trial docket of equity and jury waived cases which were to be tried by various divisions of the court, beginning June 25, 1945. Notice of the placing of this case on the equity and jury waived docket was published in The Daily Record several times, beginning June 18, 1945, and in due course the case was assigned to Division 2 of the circuit court. On July 3, 1945, during the May term, the case was taken up by the court, without a jury, the plaintiff appearing in person and by his attorney, but defendant did not appear in person or by attorney. The plaintiff testified in support of his claim, and the court rendered judgment against the defendant on both counts for the total sum of $2000, the judgment reciting that plaintiff waived a jury and that defendant, by failing to appear, was deemed to have waived a jury. On October 19, 1945, during the September term, the defendant filed a motion in the nature of a writ of coram nobis, seeking to set aside the judgment upon the grounds, briefly stated, that (1) the defendant had not waived his right to trial by jury; (2) that the court proceeded unknowingly contrary to the rules of the court in hearing said suit and in rendering judgment therein; (3) that the defendant did not learn of the rendition of said judgment...