Opinion
Opinion delivered March 1, 1948.
1. — Judgment — Write of Error Coram Nobis. Writ of error coram nobis contemplates an assault upon an error of fact de hors the record and the "irregularities" or "errors of fact" must be such as would have prevented, if known, the rendition and entry of the judgment challenged, and are to be distinguished from ordinary judicial errors in a judgment reached in accordance with established rules of procedure.
2. — Judgment. Writ of error coram nobis may not be used as a substitute for a motion for a new trial.
3. — Judgment. The writ of error coram nobis does not lie 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.
4. — Judgment. Where rules of circuit court provided for a jury trial docket and for an equity and jury waived docket, and assignment clerk mistakenly and improperly placed case on the equity and jury waived docket, and case was tried by judge, without a jury, in absence of defendant on incorrect assumption that jury had been waived, case was tried under an "irregularity" and an "error of fact", which would prevent, if known, the entry of judgment and motion in nature of writ of error coram nobis to set aside judgment was the proper procedure to attack validity of judgment.
5. — Judgment. Burden of proof rests on movant to show prejudicial error and under evidence movant met burden of proof by showing meritorious defense, denial of trial by jury and that judgment had been rendered because of error and mistake in assignment of case for trial.
6. — Appeal and Error. Under the evidence trial court abused its discretion in overruling motion in nature of writ of error coram nobis to set aside judgment.
7. — Parties. Where defendant died while defendant's motion to set aside judgment was under advisement, and same attorney who had represented original defendant appeared at hearing on plaintiff's motion for substitution of defendant's executrix, and raised no question as to sufficency of service of notice, service was waived on motion for rehearing.
8. — Parties. Where defendant died after judgment for plaintiff and while motion to set aside judgment was under advisement, filing of motion for substitution of defendant's executrix as defendant within one year after death of defendant was timely and order of substitution was not required to be made within year of death.
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 P.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
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
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 until September 28, 1945; and (4) that defendant had a meritorious defense to plaintiff's claim.
On November 24, 1945, evidence was heard in support of the motion. The testimony of Mr. Bush, Clerk of the Assignment Division of the circuit court, is to the effect that he first placed the case on the jury trial docket and afterwards, by mistake, included it is his docket of contested court and jury waived cases. He testified: "I made a bad guess on this. I thought it would be a court case, and it wasn't. * * * The trouble was, I thought it would be a jury-waived case on account of being a suit on an account, and I shouldn't have put it in there because I am not entitled to make any cases jury-waived. * * * It was a mistake on my part, of putting that card in with the contested court and jury-waived cases." That under Rule 14 of the Jackson County circuit court it was his duty to list cases at issue and to place them on the respective dockets (jury and non-jury cases) whether requested by counsel or not; that in this case counsel for neither party ever filed anything indicating whether it was a jury waived case or not, and no notice was given to any attorney in the case, except the notice published in The Daily Record. It was agreed that The Daily Record was the official publication of the circuit court of Jackson County.
Ben G. Clark, attorney for the defendant, testified that he had no equity or jury waived cases pending in the circuit court, and after the trial of jury cases was discontinued in June, 1945, he paid no attention to the setting or trial of such cases and had no knowledge of the trial or rendition of the judgment herein until September 28, 1945, when he undertook to file a motion in the case and was informed by the Clerk of Division 2 that the case had been tried and judgment entered on July 3, 1945. He promptly filed the motion now under consideration.
On April 30, 1946, while defendant's motion was under advisement by the court, the defendant, Solon S. Shelly, died, and on July 23 plaintiff filed a motion for substitution, asking that Rhea Mertel Shelly, executrix of the estate of Solon S. Shelly, be substituted as defendant. The motion was sustained on October 12, 1946. On February 15, 1947, the court overruled defendant's motion to set aside the judgment, and appeal was perfected to this court by the executrix.
Section 91 of the Civil Code, Laws of 1943, p. 382, provides that as soon as possible after issue is joined in a case pending in the Circuit Court the Clerk shall place the same upon the trial docket, and such cases "shall be set for trial in accordance with the rules and practice of the trial court * * *." The rules of the Circuit Court of Jackson County provide for a "General Docket" which shall include all cases filed in that court, except certain matters which are not herein involved (Rule 9). Rule 14 provides that in addition to the "General Docket" there is established a "Jury Trial Docket", an "Equity and Jury Waived Docket", a "Hold Docket", a "Pre-Trial Conference Docket", and "Immediate Trial List" for all cases pending after issue has been closed. The rule also requires, that within 10 days after the pleadings have been closed, the Clerk of the Assignment Division, under the direction of the presiding judge, shall place all jury trial cases upon the "Jury Trial Docket", and all equity and jury waived cases upon the "Equity and Jury Waived Docket."
This case was properly placed on the "Jury Trial Docket" May 4, 1945, and assigned to Division 2 June 14, but through the mistake of the Assignment Clerk, as above indicated, the case had been placed upon the "Equity and Jury Waived Docket" and tried by the Judge of Division 2 on the assumption that a jury had been waived, which was incorrect.
Is this such a mistake or error as can be and should be corrected by a motion in the nature of a writ of error coram nobis? We think so. Such writ contemplates an assault upon an error of fact de hors the record. All the cases hold to the effect that the "irregularities" or "errors of fact" must be such as would have prevented, if known, the rendition and entry of the judgment challenged, and are to be distinguished from ordinary judicial errors in a judgment reached in accordance with established rules of procedure. Crabtree v. Aetna Life Ins. Co., 341 Mo. 1173, 1180, 111 S.W.2d 103; State ex rel. Muth et al. v. Buzard, 205 S.W.2d 538, 541, (Court en banc); Simms v. Thompson, 291 Mo. 493.
In Kings Lake Drainage Dist. v. Winkelmeyer, 62 S.W.2d 1101, the court collects an array of Missouri authorities and defines the purpose of the writ so clearly that we quote it (1103):
"The writ may not be used as a substitute for a motion for a new trial. The latent fact unknown to the court authorizing the writ may consist in some matter of process or misprision or fault of the clerk. 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."
The present case was mistakenly and improperly placed on the "Jury Waived Docket" and was erroneously assigned to Division 2 for trial as a jury waived case. We think this was an irregularity and an error of fact which would prevent, if such had been known, the entry of the judgment herein. It follows that the motion filed was the proper procedure to attack the validity of such judgment.
But respondent argues that appellant failed to carry the burden of proof to show that error was committed against her materially affecting her substantial rights. It is true that the burden of proof rests on movant to show prejudicial error (Hellums v. Randol, 225 Mo. App. 1092; Martin v. Bulgin, 111 S.W.2d 963), but we think movant met that burden of proof. It was alleged that the defendant had a meritorious defense and had been denied a right of trial by jury, and that judgment for $2000 had been rendered against defendant because of error and mistake of procedure in the assignment of the case for trial. It would be difficult to conceive of a greater prejudicial error.
It is also argued by respondent that the writ of error coram nobis is a discretionary writ, and that the record in this case does not show that the trial court abused its judicial discretion. We think there is no merit in this contention. Under the facts in this case, the judgment should not be permitted to stand.
Appellant makes suggestion in her brief that the proceedings on the writ of error coram nobis was not properly revived in her name after the death of the defendant, Solon S. Shelly, for the reason she was not properly notified of the filing of such motion. The record discloses that the same attorney who had represented Solon S. Shelly during the proceedings appeared at the hearing on the motion for substitution and raised no question of the sufficiency of the service of notice and, after the order of substitution had been entered, he filed a brief on behalf of the executrix in support of the writ of error coram nobis and perfected the appeal in her name without, at any time, questioning the sufficiency of the service. We think there is no merit in this contention of appellant.
It is our conclusion that the court erred in not sustaining appellant's motion to set aside the judgment which had been improperly and erroneously entered. The judgment appealed from will be reversed and the cause remanded with directions to the trial court to sustain the motion and to reinstate said cause on the docket. All concur.