Bullivant v. Greer Deem

*327 FARRINGTON, J. The plaintiff filed a bill in equity seeking to' annul an order of the probate court of Butler county allowing a claim against the estate of Francis Bullivant, deceased, in favor of Wilson Cramer, and to annul a judgment rendered in the circuit court of Ste. Genevieve county wherein Wilson Cramer was plaintiff and A. W. Greer, Administrator of the estate of Francis Bullivant, was defendant. The judgment which was rendered by the circuit court of Ste. Genevieve county was filed in the probate coujit of Butler county and forms the basis of the order or judgment of the Butler county probate court. The charge in the bill is that Cramer, his attorney Lew R. Thomason, the Administrator of the Francis Bullivant estate, A. W. Greer, and the probate court of Butler county entered into a collusion and did practice a fraud on the Ste. Genevieve County Circuit Court and that the judgment there rendered was the judgment procured by fraud of these parties. To support this charge the plaintiff, as appellant, in this suit, alleges that the suit filed by Cramer and upon which the judgment was procured in the circuit court of Ste. Genevieve county, was based on a claim for services which claim had been outlawed when the suit was filed, and before proceeding farther with this opinion Aye may state that his proof in this case fails to show this fact. The petition filed by Cramer based his claim on a contract for services. It does not disclose whether this contract was oral or written. The answer which was filed by Francis Bullivant during his lifetime plead the Statute of Limitations. The reply file'd by Cramer in that suit was a general denial which, of course, placed the question of whether the Statute of Limitations had run as to that contract. There is no proof in the case before us to show whether the contract for the hiring of Cramer by Francis Bullivant was in writing or oral.- The nearest the plaintiff comes *328 to showing this is the production of a letter and some notes and a deed of trust sent by Cramer to Bullivant in Canada asking him either to pay his fee or make it in notes and-secure it by a deed of trust. He might have done this on a written contract which he had, the same as if his contract had been oral. The proof, offered to show that his contract- was oral, and therefore barred, falls far short of supporting the charge in the bill. . Appellant next relies upon the ground that the administrator, Greer, did not publish his notice of appointment. The whole case proceeds upon the theory that he was appointed as administrator and that he was served in plenty of time, and that the circuit court of Ste. Genevieve county had complete jurisdiction of the cause of action pending before it. There is a total failure in the proof to show that Greer, the administrator and the defendant in the Ste. Genevieve County Circuit Court case, failed to file an answer in that suit by reason of any connivance of collusion between the plaintiff or his attorneys. The law is well settled in this State to the effect that before a judgment will be annulled in a suit in equity the proof of the fraud practiced in the actual procurement .of the judgment must be by clear and cogent, evi-' dence, leaving no room for reasonable doubt. [Lieber v. Lieber, 239 Mo. l. c. 143 S. W. 458.] The fact that the trial court of Ste. Genevieve county may have given an erroneous judgment for plaintiff in holding that the Statute of Limitations had not run (and we do not say that he did erroneously rule on this because the evidence which was before him is not before us), yet an error of that character would not support a decree to annul the judgment, as it was not such an error or fraud practiced on the court as entered into the procurement of the judgment. [See Wolff v. Brooks, 177 S. W. 337; Gallagher v. Chilton, 192 S. W. 409; Einstein v. Strother, 182 S. W. 122; Cackley v. Meyers, 199 S. W. 719; Doud v. Lockett, 215 S. W. 769; McDonald v. McDaniel, 242 Mo. 172, 145 S. W. 452.] *329 This suit presents the peculiar situation of having been filed in the circuit court of Butler county to annul a judgment not only of the probate court of Butler county but of the circuit court of Ste. Genevieve county. We doubt, without deciding it, whether the suit could be filed in Butler county to annul the judgment of the circuit court of Ste. Genevieve county, and this because of section 1951, Revised Statutes 1919, requiring that proceedings to enjoin or stay a judgment shall be brought in the county in which the judgment was rendered and what is said with reference to said statute in the case of Captain et al. v. Mississippi Valley Trust Co., 240 Mo. 484, 144 S. W. 466, and Davison v. Hough, 165 Mo. 561, 65 S. W. 731. The probate court of Butler county made its order and judgment allowing the claim based on the judgment of the circuit court of Ste. Genevieve county, and while the judgment of the probate court of Butler county may confer jurisdiction on the circuit court of Butler county to annul its judgment, the fraud practiced as alleged in the bill was in the procurement of the judgment in Ste. Genevieve county. We call attention to this situation without deciding on the jurisdiction, because as we view the proof on the charge of fraud it falls short of that required by the law. , The record shows that the administrator in the suit pending in Ste. Genevieve county was regularly and properly appointed and. substituted as a party defendant in that cause, and that a term of court passed after he was made a party defendant and served before the judgment was entered; and while the judgment, when it was entered, was entered on the second day of the term of court rather than oh the fourth day, as the notice given to the administrator stated that it would be taken up and heard, there is nothing showing that he nor any one else appeared on the fourth day, and besides, the defect is merely an irregularity and in no sense sustains the ground of fraud alleged in the bill. We must, therefore, hold, as did the trial court when he dismissed the plaintiff’s bill, that the evidence *330 produced falls short of the rule that it must be clear, cogent and convincing beyond .a reasonable doubt. The judgment is, therefore, affirmed. Coco, P. J., and Bradley, J., concur.