Hyatt v. Wolfe

Philips, P. J. I. It is to be inferred from the strenuousness with which defendant’s counsel urge the point that the trial court may have placed its conclusion upon the ground that this action was barred by the three years’ limitation prescribed in section 3636, Revised Statutes, which declares that: “If such petition for review be not filed within three years after such final judgment is rendered, the same shall stand absolute, whether notice thereof be given or not.” This refers to the proceeding provided for in section 3684, of the same statute, which is as follows : “ When such interlocutory judgment shall be made, and a final judgment entered thereon against any defendant who shall (not) have been summoned, as required by this-article, or who shall not have appeared to the suit, etc., Buch final judgment may be set aside, if the defendant shall, within the time hereinafter limited, appear, and, by petition for review, show good cause for setting aside such judgment.” This statute has no application to the facts of this [197] case, and to this character of action. It pertains to the instance of interlocutory judgments, rendered on constructive service, where there has been no appearance. Campbell v. Carton, 29 Mo. 344; Tennison v. Tennison, 49 Mo. 110. The word “ not,” as it appeared in the corresponding section of the statute of 1855 (sect. 13, p. 1280), immediately preceding the words “have been summoned, 5 ’ is omitted, through a clerical mistake, in the statute of 1879. Otherwise the statute would be that a defendant who had been regularly summoned with personal service, by failing to appear, and letting judgment go by default, could come in three years thereafter, and get a trial on the merits by simply averring in his petition for review that he had been summoned, and had a meritorious defence to the action. This would be a most easy and cunning mode of securing delay by delinquent debtors. Section 3687, of this same statute, clearly shows the ■correctness of the above view. There was no interlocutory judgment in this case. On the contrary, the record sought to be set aside shows that plaintiff appeared and consented to the judgment. The petition in this case assails the judgment on none of the grounds contemplated by said statute. It is predicated of the fraud, alleged to have been perpetrated by defendant in procuring the false recitals in the entries.' It is essentially a proceeding on the equity side of the •court, and invokes that especial branch of equity jurisprudence, which constitutes its “most ancient foundation” — the undoing of judgments of courts of record, •obtained contrary to good morals and conscience, and affected with fraud in their procurement. Holden v. Vaughn, 64 Mo. 588 ; Purdy et at. v. Gault et al.,19 Mo. App. 191. To such an action the statute of limitation would not begin to run until discovery “by the aggrieved party, at any time within ten years after the facts constituting the fraudand the party would have five [198] years thereafter in which to bring his action, provided he brought it within the ten years. Sect. 3230, Revised Statutes ; Hunter v. Hunter, 50 Mo. 445; Brown v. Rogers, 61 Mo. 188. As the alleged fraud was not discovered until October, 1883, and the action was brought in 1884, and within ten years, it is not barred. II. ' In addition to the record evidence, the only witnesses who testified on the trial, in reference to the circumstances and facts of the entries in question, were the plaintiff, and Henry Neill, who had been his attorney, and S. T. White, who was defendant’s attorney in the transaction. The plaintiff testified as follows r “I was not here nor present when these entries were made. No one represented me at that time. After-wards agreed to arbitrate. Had no attorneys until I. was sued on the award.” Cross-examined: “I remember that Major Henry Neill sent me word about this bill of review; think it was after we had agreed to arbitrate. In February, 1878, I had no attorney employed. I had had Major Neill, but had paid him off and discharged him. My recollection is not indistinct. I fought this-award from the time it was made, through this court to the supreme court. I told the arbitrator, at the time he made it, I would not abide by it. The word I sent toNeill is, we had agreed to arbitrate it. I did not appear, nor did I authorize any one to do so for me, to prevent a stay of execution on my judgment. The first time I knew that these entries now in controversy had been made, was when I was here in court, in October, 1883, trying to get an execution on my judgment. They were then called to my attention.” Neill’s testimony showed that he was not the attorney of plaintiff at the time of th? entries. White-applied to him and wanted him to appear for Hyatt, and to consent to the entries. He did not consent. He did not appear for Hyatt because he considered that Hyatt had arbitrated without his knowledge, and he would have [199] nothing further to do with the matter. He told the court that White might have made any entries he saw fit. He had nothing to do with it; Hyatt was not present. “No one else pretended to represent him.” The statement was made in the hearing of the court, that Mr. White might have made any entries he saw fit, should rather have put the court on its guard against any ex parte entry White might make, than to warrant the entry of consent. The evidence of White is immaterial. He testified that: “I don’t remember now who appeared for Hyatt. Don’t know whether it was made on award or not. My impression is it was made by consent. Don’t think I prepared decree. I can’t tell anything more about how these entries come to be made than the records show. Don’t know whether I went to Major Neill and asked him to consent and he refused, or not.” The conclusion from this evidence is irresistible that-plaintiff did not appear, and that he did not consent to. these entries. Then this record is false in fact. In its legal essence it is fraudulent. It is among the recognized offices of courts of equity “to interfere and restrain the use of an advantage gained in a court of ordinary jurisdiction, which must necessarily make that court an instrument of injustice, in all cases where such advantage has been gained by the fraud, accident, or mistake of the opposing party.” Wells Res Adj. 428; Pierce v. Olney, 20 Conn. 554; U. S. v. Throckmorton, 98 U. S. 65-6 ; Cal. Beech Sug. Co. v. Porter, Sup. Crt. Cal 9 West Coast Rep. 195 ; 9 Pac. Rep. 313. III. It is no answer to this action to say, as suggested by defendant’s counsel, that the plaintiff is presumed, after having been served with summons in the suits, to have been present in court at the time the entries were made. He had not only not appeared to the merits, but by the express stipulation of the parties [200] in the submission for arbitration, the proceedings were to be stayed, to abide the issue of the arbitration. The result of that arbitration, under the decision of the supreme court, was a failure. It was a nullity. The submission did not provide for any judgment of the circuit court on the award to be made. The award had no place in the circuit court, except as it might have been brought into the pending actions as evidence, if pleaded properly. But, by reason of the false entries, showing plaintiff’s consent thereto, he is made to recognize the existence and validity of the award; whereby, so long as these entries of record stand, he would be estopped of record from asserting his rights to enforce his judgment for the collection of the $439.36. By the entries the court is made the instrument of injustice, and the party occasioning them obtains an unconscionable advantage, which a court of equity will eagerly interpose to prevent. As the arbitration failed, and the award is void, it is but just and honest that the parties, so far as the rules of law and equity will permit, should be placed in statu quo. To this end the judgment of the circuit court is reversed; and the cause is remanded, with direction to the circuit court to enter the proper decree setting aside and annulling said entries or judgments, in accordance with the prayers of the petition. All concur.