*1 will cannot coplaintiffs. terms her Leibrandt and Mrs. re- Company to Trust Cameron by tbe late invoked be at this wrongful conduct. its resulting from liability it from lieve showing that was no argued by the trustee also It The numerous not think so. stock. ¥e do it could sold Company Trust Cameron clearly of stock disclose sales It is con- our held as trustee. stock which it have sold the could duty it was facts law the admitted that under the clusion within stock Company trustee as to sell Trust Cameron certificates; rea-' that such after received a reasonable time could January 1, 1925, and that it later than sonable time was not $225 a share. by named date for have sold the stock said last judgment with direction is reversed and the cause remanded prayed in the judgment Ida C. Leibrandt as to enter favor of per per interest of six cent annum $5400 amount of with at rate January 1925, brought by C. Ida costs action by coplaintiffs, Leibrandt and her reduced the amount of to be by Company executed Ida C. to the Cameron Trust note Leibrandt Reynolds, C., and costs of action based on that note. concurs. PER adopt- CURIAM: The foregoing opinion Campbell, C., opinion ed as the of the court. The is reversed and the with remanded direction enter favor of Ida C. Leibrandt prayed $5400 the amount interest at per rate of six per cent January 1, 1925, annum from costs brought by the action Ida C. Leibrandt and coplaintiffs, her reduced the amount of the executed C. note Ida Leibrandt Company the Cameron Trust and costs of action based note. Acceptance
General v. H. E. Corp., Appellant, Motors Respondents S. 78 W. 109. et al., City Appeals. Court December Kansas *2 Leon Greenbamn for appellant. Popham
Gowgill & and respondent. John F. Gooh for CAMPBELL, begun justice C. This action was in the court of a peace against in Kaw E. Township, County, Jackson H. Lyman, defendant, hereinafter referred to as the and others. The changed justice venue of the cause was to the court of another in the township. same court was in favor days subsequent the defendant. plaintiff, ten to the-rendi- tion of appealed. judgment, judg- circuit court entered a ment in the cause as follows:
“Now plaintiff by on this attorney open comes and in Inc., defendant, Gardner-Paup dismisses this cause as Motors, a corporation.
“Wherefore, adjudged and ordered this hereby cause defendant, be and the same dismissed as to Gardner- Paup Motors, Inc., go a corporation, and that hence said C. L. and from and have recover of and from said and herein surety plaintiff’s appeal herein, its costs Wortz, and bond expended therefor execution. incurred and and have by- coming trial, plaintiff, regularly “This cause comes and defendants, Lyman, Anthony H. V. Mura attorney, and Wheeler, although notified, Frank failed properly and any appear offer defense to this action. this jury plaintiff by in the trial
“Now waives a attorney, to have failing are deemed appear cause and said defendants jury to the court waived a herein is submitted and all of pleadings adduced, hearing and evidence an after being fully court finds premises, and advised issues in favor of the the defendants prin- plaintiff is receive of defendants entitled to said cipal, ($400), interest thereon sum of four hundred dollars *3 December per per at the rate of cent annum from six (6%) forty-eight dollars date, amounting to the sum forty- ($48), making aggregate four hundred a total and sum of eight action. and the of this ($448), dollars costs plaintiff and finds issues in of the
“The further favor Frank Wheeler on defendants, Anthony V. and A. Mura their counterclaims. plain- that
“Wherefore, adjudged is the court it ordered and Lyman, E. defendants, H. recover and from said tiff do Wheeler, hundred V. Frank A. the sum of four Anthony Mura and together incurred costs herein forty-eight ($448), with its dollars expended and have therefor.” execution execution was seized under an The the defendant property of a motion judgment. defendant filed upon Thereafter issued The motion quash the execution. to correct the and to appealed. Plaintiff has heard and sustained. defendant upon claim based that proceeding The justice. appeal from not served with notice of prelim- of a Following of evidence the introduction defendant introduced so, having obtained leave to do inary nature, plaintiff, granted. change venue was which the in evidence the affidavit Lyman by E. M. Faulkner.” “H. E. signed, affidavit containing papers jacket plaintiff also introduced the judgment was justice in which in the court of the following: Faulkner M. “E. Thereon is written rendered. introduced Lyman.” in the trial for defendant Later for agent Faulkner signed, “E. M. of appeal a notice Faulkner that in substance testified defendants.” behalf, he did that or on his him, never acted for represent did not affidavit signed his name that Faulkner not know from appeal was an there he that venue, and that did not know issued. execution was after the judgment until 458 Mr. Faulkner testified for defendant be employed that was not
by tbe defendant; be represent did not tbe defendant in tbe case; signed that be tbe defendant’s name to tbe affidavit for “just of venue to send there;” tbe case from that be law- was not a yer; signed at tbe time be appeal tbe plain- notice of be told tiff’s “represented counsel Mr. Wheeler and Mura and Mr. signed on as such.” On cross-examination, tes- Faulkner tified : “Q. you I band a paper plaintiff’s (notice marked Exhibit appeal) you and ask if paper you to state was served on and if that your'signature appearing at bottom? A. It is. tbe “Q. your That is signature, Yes,' it? A. sir. “Q. you I band plaintiff’s (jacket) herewith Exhibit you ask to state if pencil your signature? bandwriting there is A. sir. Yes,
“Q. you Yes, sir, Did write there? A. I that on did. “Q. you Lyman?’ Did Yes, write ‘H. E. A. sir. “Q. Yes, And‘E. M. A. Faulkner H. on there?’ sir.
“Q. No, Was that true? A. sir, it was not. “Q.- Why you put did there? put I tbe on A. didn’t on here two defendants’ names.
“Q. you put What for? A. envelope Because bis name first is tbe defendant’s name mentioned. “Q. you represent Did A. Joyce’s No, him down at court? sir. “Q. put any authority You without Lyman? Dr. representing A. I boys. was there these two “Q. you Lymán? represent No, Did Dr. I did not. sir, *4 “Q. you authority any put Did have down rec- to on that ord? No, sir, A. no the more than information. “Q. it? ready try What is A. I went down case there to this you when the case was called and wasn’t there. “Q. you authority Did Dr. any put to there for on Lyman? No, A. sir. “Q. put You down there for the information of the telephone clerk? A. Yes, on there. sir, with number the Yes, “Q. you? there, on A. put Exhibit You didn’t ... sir.
“Q. Lyman A. represented never Dr. in this case at all? You No, sir.
“Q. you repre- say you you When did first told me didn’t sent him? A. Yes, sir.
“Q. was you I say A. I told the the case when was that? tried.
“Q. represent Lyman That Dr. You told me what? A. I didn’t Paup. They nor were both there. “Q. Yes, Joyce’s You told me that down there at court? ’’
sir.
In the parties trial in circuit jury, the court the waived a tried though the cause question as the as appeal to whether notice of had given or had not been was properly presented motion, question that such was one of fact for the determination the trial judge. on, appeal duly The notice of was Faulkner. The served issue in the trial agent whether was or not Faulkner was the of the parties voluntarily defendant. The tried that issue and neither may say them on was v. no issue. such [Cook Sears, Roebuck & finding S. W. of the Co., 74.] supported by is, con- substantial evidence therefore, appeal. clusive plaintiff permitting contends that the in de- court erred the authority
fendant the to show that “Faulkner to execute had no allowing through Lyman, thereby respondent, venue parol testimony, impeach Layton’s particular to in a Justice docket sought wherein docket is conclusive.” When such the defendant prove agent attorney to that Faulkner was not his or the objected justice reason “that court are for the of .the records In the the best him in courts.” represented evidence who those af- Layton docket of Justice stated that H. justice fidavit is silent venue. The docket of the represented question, as to whether the defendant or not agent showing that Faulkner attorney. Hence, or evidence or contradict agent attorney not not the for the defendant did or justice. the ob- Moreover, impeach any in recital the record of theory record jection upon based evidence was ground that best and not of the was the evidence af- jacket Neither the nor the impeached the record. signed name was record. the defendant’s fidavit which Faulkner agent or to act signing affidavit, In Faulkner not assume advised that attorney not for the defendant and defendant plain- point thereon. The ruled his name was written tiff. insists notified, duly properly “although defendant circuit court that action” is conclusive any to the offer defense appear failed in a a recital State that It is the rule in this proceeding. has been served a effect that incorrect record to be parts may other process be shown *5 50 S. W. Ray, v. proceeding, in a collateral [Ray even 142.] contemplate that the not at bar does governing the case The law In was not served. or appeal was of notice record shows whether notice of tending to show evidence parol these circumstances reason that it the for admissible served was was not 460 the best evidence Charles, available to the defendant. v. [Charles 281 S. W. Furthermore, question first the is raised for the 417.]
time on appeal. plaintiff
The contends that the in the motion statement the defendant filed affidavit for of venue is conclusive the appeared through his in the court Faullmer as agent. tending The evidence to af- show did file not fidavit objection. for of There- venue admitted without after, the defendant asked leave state to amend the motion so as to by the affidavit was “some defendant.” The court formally not request. rule we However, circumstances, the will though determine the had been made. action as the amendment
The in of proceeding contends the nature a writ argues of error coram writ cannot used nobis that the verity adjudication to attack the of an that the defendant express was properly notified. the True, the writ be used to attack cannot verity judgment validity. The of recitals in to its essential effect been to the defendant had notified was not validity judgment. essential to the v. [McClanahan West, 100 310, Mo. 320.] a may “The writ not be as a for a used substitute motion new trial. authorizing The latent fact to the court unknown may writ in process misprision consist some matter of or fault of the clerk. authorities, In other words, as we understand cause, writ going lies not some fact the merits unknown to going but for unknown right some fact the court pro- to ceed, entirely and which power defeats the court to attain a Drainage valid proceeding.” result Lake v. Dist. [Kings 62 Winkelmeyer, (2d) 1101, S. W. 1103.] though has proceeded writ will lie “when in a case as right a fact existed, which was material its it proceed, to when exist, exist, did not and when the absence of assumed the fact entirely power the court a to attmn valid result defeats proceeding.” Gould, (Italics its v. Mo. App. [Cross 597.] ours.) case, supra, approval Cross was cited the case Thompson, Simms v. Mo. competent
In the writ present case it was under to show entering judgment the best available that the court in right existed, touching proceed, assumed a fact its when did not exist. finding supported of the trial substantial evidence Reynolds C.,
and we will not interfere. The is affirmed. concurs. adopt-
PER foregoing opinion Campbell, CURIAM: The C., All ed affirmed. concur. opinion of the court. The