111 S.W.2d 103 | Mo. | 1937
Lead Opinion
[1] I. On its face appellant's motion to set aside presented issues involving alleged irregularities patent upon the record and alleged errors of fact calling for the introduction of evidence dehors the record. Respondents say only three methods of procedure are available in trial courts to set aside and recall a judgment rendered at a former term — 1st, a motion under the statute [Sec. 1101, R.S. 1929, Mo. Stat. Ann., p. 1396]; 2nd, an action in equity; 3rd, a motion in the nature of a writ of error coram nobis —; and that appellant proceeded by a motion in the nature of a writ of error coram nobis, because it was tried as such below, evidence being offered in support of the motion, and appellant did not proceed by a separate suit. [Jeude v. Sims,
Section 1101, supra, provides: "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." The statute contemplates an assault upon an irregularity patent on the record. [Harrison v. Slaton, supra (3).] The motion in the nature of a writ of error coramnobis contemplates an assault upon an error of fact dehors the record. [Sims v. Thompson, supra.] The cases [authorities cited herein and those referred to in the cases cited] and the texts [among others, 5 Ency. Pl. Pr. 27, II; 34 C.J., p. 390, sec. 601 et seq.; 2 Tidd's Prac. (4 Ed.), p. 1136; 2 Chitty's Blackstone's Comm. (1856 Ed.), Book 3, p. 406(4)] are 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 accord with established rules of procedure. For instance: "An irregularity may be defined to be the want of adherence to some prescribed rule or mode of proceeding; and it consists either in omitting to do something that is necessary for the due and orderly conducting of a suit, or doing it in an unseasonable time, or improper manner." [1 Tidd's Prac. (4 Ed.), p. 512; Showles v. Freeman,
Speaking generally, if, under the facts and circumstances of a given case, a judgment is subject to attack for irregularities patent upon the record and errors of fact dehors the record, we are of opinion the issues may properly be presented in the same motion.
[2] II. One of appellant's assignments of error presents the contention that the court erred in overruling appellant's motion on the grounds respondents' petition failed to allege "that the policy sued on was a Missouri contract, or that the insured or beneficiary were, or ever had been, citizens or residents of the State of Missouri, or that the policy was applied for, issued or delivered in the State of Missouri, or that appellant was a foreign insurance corporation," and, hence, was insufficient "to authorize service of process upon the Chief Clerk to the Superintendent of the Insurance Department of the State of Missouri." Appellant cites authorities upon which it relies to sustain the assignment under "Point V" of its brief.
a. Under Craig v. Smith and the comment thereon in State ex rel. v. Riley, supra, respondents' contention that only matter of record proper — the process, return, pleadings and judgment — may be considered in connection with the assignment is not well taken, notwithstanding the issue presented on the face of the assignment apparently assaults alleged irregularities of record for which the motion under Section 1101 lies.
b. Quoting General Motors Accp. Corp. v. Lyman,
[3] c. Respondents also say proceedings under the statute may not be invoked to challenge the sufficiency of their petition. Appellant's motion attacked the jurisdiction of the court over its person; and insofar as the allegations of respondents' petition may be involved in the determination of such an issue, they are within the scope of the functions of a motion striking at the authority of the court to proceed and render the judgment questioned. [Shuck v. Lawton,
d. Service was had upon appellant, if at all, under Section 5894. Revised Statutes 1929 (Mo. Stat. Ann., p. 4495). Said section provides: *1183 "Any insurance company not incorporated by or organized under the laws of this state, desiring to transact any business by any agent or agents in this state, shall first file with the superintendent of the insurance department a written instrument or power of attorney . . . appointing and authorizing said superintendent to acknowledge or receive service of process issued from any court of record, . . . and upon whom such process may be served for and in behalf of such company, in all proceedings that may be instituted against such company, in any court of this state, . . . and consenting that service of process upon said superintendent, shall be taken and held to be as valid as if served upon the company, according to the laws of this or any other state. Service of process as aforesaid, . . . upon the superintendent, shall be valid and binding, and be deemed personal service upon such company, so long as it shall have any policies or liabilities outstanding in this state. . . ." Section 5895, Revised Statutes 1929 (Mo. Stat. Ann., p. 4498), authorizes service upon the chief clerk in the absence of the superintendent and deputy superintendent.
We quote, in order, the material recitals of the petition filed in the Circuit Court of Adair County, the return of the sheriff of Cole County and the judgment of the Circuit Court of Adair County:
"Plaintiffs state that defendant is a corporation duly organized and existing under and by virtue of law and engaged in the business of life insurance."
"Executed the within writ in the county of Cole . . . upon the within named defendant, The Aetna Life Insurance Company, a corporation, by delivering a true copy . . . to F.E. Murphy, Chief Clerk to the Superintendent of the Insurance Department of the State of Missouri. . . ."
"Now on this day this cause comes on for hearing, and the plaintiffs appearing and answering ready for trial, and the defendant having theretofore appeared in this court and having failed to answer herein, or to be present at this time, and therefore being in default. . . ."
Assuming the court in the judgment recital ". . . the defendant having heretofore appeared in this court . . ." intended to imply a general appearance by appellant, appellant is not precluded thereby from questioning that jurisdiction of the court over its person essential to the validity of the questioned judgment. [Cloud v. Pierce City,
It is essential to the efficacy of a judgment that the court have jurisdiction — jurisdiction over the person, with which we are here *1184
concerned [State ex rel. v. Mueller (Mo. App.),
[4] The quoted recitals of record contain no affirmative showing that the process served in the instant case was upon a foreign insurance *1185
corporation; and we, therefore, are constrained to hold the trial court did not acquire jurisdiction over the person of appellant unless appellant conferred such jurisdiction upon the court. By way of analogy the better reasoned and the majority of the cases sustain appellant's position that the petition should contain allegations authorizing service in the manner here attempted. Respondents' petition contained no allegations justifying the inference that appellant was a foreign corporation. The service of process was not in accord with the common law. A court does not usually exercise its powers of its own motion. Wright v. Hink,
[5] e. Prior to the entry of the questioned judgment appellant, appearing specially, filed its petition for the removal of the cause to the Federal Court and, upon the overruling of said petition, again appearing specially and "not entering its general appearance," filed its motion to stay proceedings upon the ground jurisdiction over the cause had become vested in the Federal District Court by reason of its petition for removal. Appellant's filing of its petition for removal did not constitute a general appearance [Electrolytic C. Co. v. Wallace, etc., Co.,
[6] III. We deferred taking up respondents' motion to dismiss appellant's appeal for failure to comply with our Rule 15 because we can dispose of it here more readily. While the motion attacked appellant's statement, its propriety is apparently conceded in respondents' suggestions. We find it proper. The statement is followed, in turn, by "assignments of error," "points and authorities" and the "argument." The other ground of the motion attacks the "points and authorities." Some statements of the "points" made by appellant may be subject to attack as abstract statements of the law, but when considered in connection with appellant's assignments of error the precise rulings and issues involved are set forth. See the quoted language of appellant in the first paragraph under II, supra, Campbell v. Campbell,
Respondents' motion to dismiss is overruled; and the order of the trial court overruling appellant's motion to set aside the judgment is reversed and the cause is remanded with directions to sustain said motion and set aside said judgment. Cooley andWesthues, CC., concur.
Addendum
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur.