Shuck v. Lawton

LAMM, J. To the September term, 1907, of the Shannon Circuit Court, Mr. Shuck sued for damages for outlay in, and performance in specie of, a land contract. There was no service attempted to that term, and the petition says nothing about the non-residence of defendants or any of them and makes no allegation upon which an order of publication could be based. Nor was an affidavit of non-residence made and filed at any time. The next step in the case was proof of publication, reciting, inter alia, that the petition alleged that certain named defendants, to-wit, all of them, “are non-residents of the State of Missouri so that the ordinary process of law cannot be served upon them in this State.” This order was made by the clerk in vacation between the September term, 1907, and March term, 1908. Following at the heels of proof of publication, of that order, at said March term, 1908, judgment went on default against defendants for the relief prayed. During said judgment term defendants appeared not and no motions were filed on their behalf. Presently on August 10, 1908, in vacation between the March and September terms, 1908, defendants appeared specially by counsel and filed a motion verified [172] by affidavit to set aside the judgment, grounding their said motion on an absence of legal service of process, in this, to-wit, that the record shows no personal service and that the order of publication, purporting to be made by the clerk in vacation, is based on a false narration of fact therein, to-wit, that the petition alleged defendants were non-residents of the State of Missouri, when there was no such averment n,or was any affidavit of non-residence filed at any time. There was another ground not material here. Thereupon movents caused a summons (with a certified copy of the motion annexed) to issue to Mr. Shuck, notifying him to appear to the motion on the first day of the September term, 1908. Service was had thereon, but Mr. Shuck saw fit not to appear. At the September term, the motion was continued. At the next March term, 1909, it was reached in due course, taken up, heard and sustained (Mr. Shuck still standing mute and in default). The court found the allegations of the motion true and vacated and annulled its former judgment Thereat, within a year, Mr. Shuck brought error and served notice. The questions are: Is the motion timely? Was it sufficient? Had the court authority at a subsequent term to set aside the judgment? We answer each, “yes.” Because: Motion for Review. (a) One proposition advanced by plaintiff in error, to-wit, that the motion does not fill the office and function, of a petition for review is put to one side. This for the very good reason that no one claims the motion was of that character or was filed by virtue of statutory provisions (R. S. 1909, sec. 2101 to 2108, inclusive) relating to such petition. [173] Proof Assumed. [172] (b) Plaintiff in error puts his finger on no vice of insufficiency in the motion. It makes a plain and unequivocal charge of irregularity in procedure, with time, nature and circumstance. Absent a bill of ex [173] ceptions bringing here the testimony admitted on the motion (as here) its allegations must he taken proved as laid — the presumption being that courts of general jurisdiction act by right and not by wrong. Moreover, the record brought up by our writ shows a patent and blazing irregularity on its face, viz., an order of publication issued by a clerk without a particle of statutory right to do so. [R. S. 1909, sec. 1770.] Instead of being insufficient the motion is quite otherwise. Hinc illae lachrymae, to fall into the phrase of Terence. Judgments: Set Aside on Motion. (c) During the- trial term judicial acts are so far forth in the breast of the court that judgments may (under given circumstances) be set aside on the motion of a party, or, as a debt due to justice, by the court on its own motion. [Ewart v. Peniston, 233 Mo. 695; Aull v. Trust Company, 149 Mo. l. c. 13 et seq.] The foregoing discretionary power of a court over its judgments during the term by no manner of means measures the full breadth of the statutory authority of a circuit court on motion to set aside a judgment after the term ex debito justitiae. That power, under guarded limitations (set forth in a wealth of judicial exposition construing it) is found (possibly in the common law, but at all events) in a statute venerable with age — a statute whose practical wisdom is vindicated by many cases, and in none more triumphantly than in the case at bar, viz.: “Judgments in any court of record shall not be set aside for irregularity, on motion, unless such motion be made within three years after the term at which such judgment was rendered.” [R. S. 1909, sec. 2121.] We have construed that statute to mean that for a class of irregularities patent of record (i. e., not resting in proof dehors the record) a judgment may [174] be set aside at any subsequent term within three years of its rendition on motion. [State ex rel. v. Riley, 219 Mo. l. c. 681, and cases cited.] The student, ambitions and alert to follow the law to its ultimate sources and garner its philosophy and reason from judicial exposition, may consult with profit the Riley case, supra, and Cross v. Gould, 131 Mo. App. 585. The opinion in the latter is an exhaustive treatise on the authority of courts to set aside their judgments after the term at common law as well as by virtue of the statute, and the distinctions between and separate offices of writs of error coram nobis, motions in the nature of such writs, motions based on irregularities patent of record, and those resting in proof dehors the record, with a wealth of cases illustrating the guarded limits surrounding such motions and writs and their true office and function. [Quod vide.] The law on that subject needs no new exposition. The irregularity we are dealing with in this case clearly comes within the intendment of the quoted statute. If it could not be corrected by the court whose process and jurisdiction were abused, it would be a scandal on the orderly administration of justice. "We find no fault with the court’s setting aside the judgment. Accordingly the writ of error should be quashed and the' proceeding dismissed. It is so ordered. All concur.