Opinion
No. 43319.
April 13, 1953. Rehearing Denied May 11, 1953.
APPEAL FROM THE CIRCUIT COURT OF BUCHANAN COUNTY, DIVISION NO. 2, EMMETT J. CROUSE, J.
Horace Merritt, St. Joseph, for appellant Ellinora Schoenhals.
Abe Goldman, St. Joseph, Culver, Phillip, Kaufmann Smith, St. Joseph, Strop Strop, St. Joseph, for respondents.
Plaintiff appeals from a judgment of the Buchanan Circuit Court denying her motion in the nature of a writ of error coram nobis to set aside the previously entered order and judgment of that court which dismissed with prejudice the main or original case out of which the present proceeding grows. It is unnecessary to notice the nature of the action thus dismissed other than to say that the petition was in one count, and that its prayer was: (1) For $10,000 actual and punitive damages on account of alleged wrongful and malicious litigation by which plaintiff claimed to have been defrauded of her home, and for the wrongful and malicious invasion of the latter; (2) to set aside a deed to lots 6 and 7, block 56, St. Joseph Extension, an addition to the City of St. Joseph, and to quiet the title in plaintiff to the property thereby conveyed; and (3) for an injunction restraining the grantee in the deed sought to be set aside from entering or trespassing upon the property.
The judgment of dismissal was made and entered January 15, 1952, and reads as follows:
"Now at this day comes the plaintiff in the above entitled cause in person and by attorney, Horace Merritt and dismisses her suit with prejudice to the bringing of another action on the same matter.
"It is therefore ordered, adjudged by the court that the plaintiff take nothing by her suit, and that the defendants go hence without day and have and recover of and from the plaintiff their costs in this behalf expended and have therefor execution."
Plaintiff neither challenged, nor sought relief against the consequences of, the dismissal as thus entered until 97 days later when, on April 21, 1952, she instituted the present proceeding by filing her "motion in the nature of a writ of error coram nobis." Summarized, the allegations of fact of that motion (by paragraphs and omitting prayer) are these:
I. That a few days prior to January 15, 1952, plaintiff, under the compulsion of threats made by one of the defendants and another, went to the courthouse and informed the judge of the circuit court in whose division her case was pending (Judge Crouse) that she desired "to dismiss her suit as to all except the recovery of, and adjudication of her right and title to" lots 6 and 7 in controversy, "but that she wanted her lots;" that the judge did not make any order at that time, but notified her to appear on January 15, and also gave notice thereof to her attorney.
II. That on the last-mentioned date she and her attorney appeared before the judge, at which time her attorney announced that he desired to file an amended petition under which two of the defendants would be dropped as parties, and the subject matter of the action would be confined to the lots in question, and praying that the deed thereto herein above mentioned be removed as a cloud upon plaintiff's title, and that she be decreed to have a good and indefeasible title to said lots 6 and 7. The motion then alleges that instead of reading said amended petition and permitting it to be filed "the court then required the plaintiff to be sworn, and asked her the question, `Didn't you come to me and tell me to dismiss said suit?' to which she replied, `Yes, but I said I wanted my lots 6 and 7, or said I wanted lots 6 and 7, or words to that effect,' whereupon the court made an order dismissing her said suit."
III. That plaintiff's attorney was "then prepared to file a new suit or to proceed to file this motion in the nature of a writ of error coram nobis" but was dissuaded from doing so on account of a request by counsel on the other side to enter into negotiations looking toward a settlement; that during the negotiations neither plaintiff nor her attorney or those on the other side knew that the record entry recited that the dismissal was with prejudice, and that fact was not discovered by plaintiff's attorney until April 18.
The motion came on for hearing June 9, at which plaintiff adduced evidence the tenor and effect of which was to support the allegations of the motion. Defendants offered no evidence. But, on the court's own motion, the shorthand notes "indicating what had happened at the end of the hearing" at which the dismissal was entered (on January 15) were read in evidence by the official reporter, as follows:
"The Court: Do you or do you not want this dismissed?
"Mrs. Schoenhals: I don't care to have it dismissed if I get my two lots.
"The Court: Very well.
"Mrs. Schoenhals: That's all I want.
"Mr. Merritt: Well, let the case be dismissed as far as we are concerned.
"The Court: She has now indicated that she doesn't want it dismissed.
"Mr. Merritt: Well, she came to me and what she told me was, she said no, she wanted her two lots, and we wanted to amend the petition so that she would only claim title to those two lots. So I have drawn an amended petition to be filed, but since she has talked that way to the court and they have taken this suit, Mrs. Pahler has taken action against me for filing this suit, so that I want to just dismiss the case as far as I am concerned so she can get some other lawyer.
"Mrs. Schoenhals: No. I can't get no other lawyer.
"The Court: You desire to dismiss it?
"Mr. Merritt: Yes.
"The Court: Very well. The record will show plaintiff's petition dismissed with prejudice to the brining of another action. That's all, Mrs. Schoenhals. Your case is dismissed. Your attorney does not desire to proceed with it."
If, under the facts and circumstances surrounding the making of the order of dismissal as above outlined, the inclusion of the "with prejudice" provision constituted error, as plaintiff contends, such was not the character of error against which the error coram nobis principle relieves. The writ of error coram nobis, or a motion in the nature of a writ of error coram nobis "lies to review and reverse a judgment for error of fact, as distinguished from error of law. * * * It lies for error of fact, not appearing on the face of the record, which fact was unknown to the court, and which, if it had been known, would have prevented the rendition and entry of the judgment. The writ will not lie where the party complaining knew the fact at the time of trial, or by the exercise of reasonable diligence might have known it. Only such errors can be assigned as are consistent with the record before the court * * *. The unknown fact to authorize the writ must be of such a character as would, if known, disable the court from rendering the judgment [as, for example, the death of a party, infancy, feme covert, or lunacy]. The writ may not be used as a substitute for a motion for a new trial. * * * In other words, as we understand the authorities, the writ lies not for some unknown fact going to the merits of the cause, but for some unknown fact going to the right of the court to proceed, and which entirely defeats the power of the court to attain a valid result in the proceeding. [Citing cases.]" Kings Lake Drainage Dist. v. Winkelmeyer, 228 Mo.App. 1102, 1106-1107, 62 S.W.2d 1101, 1103. See, also, Casper v. Lee, Mo.Sup., 245 S.W.2d 132; Badger Lumber Co. v. Goodrich, 353 Mo. 769, 184 S.W.2d 435; Crabtree v. Aetna Life Ins. Co., 341 Mo. 1173, 111 S.W.2d 103; 49 C.J.S., Judgments § 312; 31 Am. Jur., Judgments §§ 798-809.
Applying these principles to the facts in judgment, it will be seen that plaintiff suggests no fact as having been unknown to the court at the time the dismissal was entered. On the contrary, her complaint is that she made known at that very time that she desired to pursue her claim insofar as it concerned the real estate, but that the court with that knowledge nevertheless dismissed her action with prejudice to the bringing of another. In other words, that the court knew the very facts here relied on for reversal, but acted contrary to, and in disregard of them. Obviously, the remedy invoked by plaintiff does not apply in such a situation. No question arises upon this record as to whether enforcement of the "with prejudice" provision could be prohibited (in a proper proceeding) as being beyond or in excess of the court's jurisdiction to append such a provision under provisions of the code in relation to dismissals, Sections 510.130- 510.140 RSMo 1949, V.A.M.S.
The judgment is affirmed.
All concur.