State ex rel. Phelan v. Engelmann

Sherwood, J. — This is an original proceeding in this court, having for its object the issuance of a peremptory writ of mandamus to compel respondent, who is the clerk of the common pleas court of Cape Girardeau, to issue execution on a judgment formerly obtained in that court by Alex. J. P. Garesche against the president, directors and faculty of St. Vincent’s College, afterwards affirmed in this court (76 Mo. 332), and which judgment, prior to such affirmance, had been assigned by Garesche to relator. After such affirmance, the defendants in that cause, by petition, in the nature of a bill in equity, filed, in the Cape Girardeau circuit court, charging fraud on the part of Garesche in procuring, on re-hearing, an affirmance of the judgment, which, at first, had been reversed, obtained, on final hearing in the circuit court, a decree granting a new trial in the cause, in accordance with the opinion of this court as first delivered, and perpetually enjoining and restraining relator and Engelmann, who were parties defendant in the circuit court, from — 561 — issuing execution on the judgment of the common pleas court. From this decree relator has appealed, and his appeal is now pending in this court. These, in brief, are the facts presented in this case, and upon which relator, denying the sufficiency of respondent’s return, but admitting, by his motion, the truth of its recitals, asks that a peremptory writ issue. I. Mandamus is not the proper remedy in this case. It is among the fundamentals of the law relating to the issuance of such a writ that it will not be awarded but as an extraordinary remedy, only issuing when the law, in the ordinary methods of its procedure, is powerless to grant relief. It results from this principle that relief will not be granted an aggrieved party in this unusual way, where he may attain the same result by invoking another adequate legal remedy. In all such cases the courts uniformly refuse to exercise their extraordinary jurisdiction in behalf of a party who, in such a situation, seeks it. To rule otherwise than this, would be to allow a writ of mandamus to usurp the functions of an appeal or writ of error. “ Indeed, the interference in such cases would, if tolerated, speedily absorb the entire time of appellate tribunals in revising and superintending the proceedings of inferior courts, and the embarrassment and delay of litigation would soon become insupportable, were the jurisdiction by mandamus sustained in cases properly falling within the appellate powers of the higher courts.” High on Ex. Leg. Rem., secs. 15, 177, 180, and cases cited; Blecker x. St. Louis, etc., 30 Mo. 111; Potter v. Todd, 73 Mo. 101; Williams v. Judge, etc., 27 Mo. 225; State v. Howard County Court, 39 Mo. 375; State ex rel. v. McAuliff, 48 Mo. 112; Mansfield v. Fuller, 50 Mo. 338; State ex rel., etc., v. Lubke, 85 Mo. 338. And the principle announced in respect to refusing the writ of mandamus is not affected, nor the case changed because the appropriate remedy may in — 562 — volve inconvenient delay, or operate harshly or oppressively on the party complaining, or by reason of the fact that the judgment of the subordinate court is plainly erroneous, if the question passed upon by such court was properly within its jurisdictional powers. High on Ex. Leg. Rem., sec. 189; Ex parte Perry, 102 U. S. 183. But it is insisted that the circuit court of Cape Girardeau county had no jurisdiction in the premises, 'and that, to correct the assumption on the part of that court of an unwarranted jurisdiction, a peremptory writ should issue. The doctrine is a familiar one that equity will interfere where a judgment is obtained or entered at law, through fraud, accident or mistake, and by all apiJropriate means will protect the rights and interests of the party who would otherwise be injudiciously affected thereby. This equitable interference manifests and enforces itself in an almost infinite variety of ways. One of the most common methods of procedure is by enjoining the inequitable judgment; another, by setting it aside. 3 Pom. Eq. Jur., sec. 1364; 2 Ib., secs. 836, 871; 1 Story’s Eq. Jur:, sec. 252 a; 2 Ib., sec. 876 a; 2 Dan. Ch. Pr. 1624. But a court of equity, in granting injunctive relief, does not act upon the courts whose judgments it enjoins, nor claim any supervisory power over such courts or their proceedings. It acts solely on the party.' Its writ of injunction is not even addressed to those courts. It neither assumes any superiority over those courts, nor denies their jurisdiction. It giants its restraining orders, which are directed only to the parties, on the sole ground that from certain equitable circumstances, of which the court of equity has cognizance, it is against conscience that the party inhibited should be allowed to enforce his claim or judgment. 2 Story’s Eq. Jur., secs. 875, 1571. The action of a court of equity, in such circumstances, is very succinctly stated in the case of Wingate v. Hayward, 40 N. H. 437, where it is remarked by the court that, “if, however, the judgment of a court of common — 563 — law having general jurisdiction, be rendered by accident •or mistake, or through fraud, or any fact exists which proves it to be against conscience to execute the judgment, of which the injured party could not have availed himself in a court of law, or of which he might haye availed ' himself at law, but was prevented by fraud, accident, or mistake, unmixed with' any fault or negligence of himself, or his agents, a court of equity may interfere by temporary or perpetual injunction, to restrain the adverse party from availing himself of such a judgment. Fraud will vitiate a judgment, and a court of equity may declare it a nullity. Equity has so great an abhorrence of fraud that it will set aside its own ■ decrees if founded thereupon. And, “where the judgment has been procured by .artifice or concealment, on the part of the plaintiff, and the court where the fraud has been perpetrated is not able to afford adequate relief, then a court of equity will take hold of the party who has committed the fraud, and will prevent his using the judgment to the injury of his adversary.” Tompkins v. Tompkins, 3 Stock. (N. J. Eq.) 512-514. Mr. Kerr says : “ In applying this rule, it matters not whether the judgment impugned has been pronounced by an inferior, or by the highest, court of judicature in the realm, but in all cases alike, it is competent for every court, whether superior or inferior, to treat as a nullity any judgment which can be shown to have been obtained by manifest fraud.” Kerr on F. and M. 294. In Boulton v. Scott, 2 Green’s Ch. 231, it is declared that the jurisdiction of a court of equity to set aside a judgment for fraud extends to all courts, the grade or character of the court making no difference. In the case of Wilson v. Montgomery, 14 Smedes & Marshall, 205, the court say, that where a judgment is obtained in the lower court by a false return, and affirmed in the Supreme Court, the affirmance in the Supreme Court will not make any difference in the result. And, — 564 — further, that “any other rule would destroy all confidence in judicial proceedings.” A ruling analogous to-this was made in Georgia, where, owing to the fact that the certificate of the trial judge to the bill of exceptions was by mistake improperly dated, in consequence of which the bill of exceptions was dismissed in the Supreme-Court, and the judgment, in consequence of such dismissal, affirmed, it was held that equity, as administered by one of the circuit courts of that state, would enjoin the collection of the judgment thus affirmed. Kohn v, Lovett, 43 Ga. 179. I have cited the authorities on the question of fraud, etc., and of the jurisdiction which courts of equity take in such cases, even when the claim ripens into judgment, and into the affirmance of that judgment, by the highest appellate court, merely to show that the circuit court, in the present instance, which, generally speaking, is the only tribunal which is possessor of original chancery powers in this state, had the power to take cognizance of the matters stated in the petition for equitable relief filed in the circuit court by the president and directors of St. Vincent’s College. Of the sufficiency of that petition I do not purpose to speak, nor of the nature and propriety of the decree rendered thereon; for if the jurisdiction of the circuit court be conceded, such-jurisdiction, however erroneously exercised that jurisction may be, cannot be questioned or controlled by mandamus. High on Ex. Leg. Rem., sec. 189. Nor can the circuit court, by entertaining jurisdiction in this instance and proceeding to a final decree, be regarded as wanting in proper respect for the judgment of this court. Its action, in this regard, only goes so far as this: That an unconscionable advantage has been gained in the original action, by the plaintiff, which a court of equity will not permit his assignee to retain, and which advan — 565 — tage no powers but the flexible powers of a court of equity are able to wrest from his hands. The peremptory writ will, therefore, be denied. All concur.