Graff v. Dougherty
120 S.W. 661
Mo. Ct. App.
1909
Check Treatment
NORTONI, J. —

This appeal is from a ruling of the circuit court on a motion to set aside a judgment and recall an execution. It appears plaintiff instituted his suit against defendant in the justice of the peace court of the city of St. Louis. The defendant was personally served by writ of summons and appeared to the action. *58He filed his application for, and was granted, a change of venue to another justice of the peace court in the same district. The justice of the peace to whose court the cause was transmitted on change of venue set the case for hearing on September 1st, and issued a notice to the defendant to that effect. This notice was never served upon him, however. It was returned by the constable reciting that defendant co.uld not be found. The justice of the peace thereafter proceeded as though the defendant were a non-resident of the city, and issued ■notices by publication to the effect that the cause would be heard and determined on the date therein mentioned. The defendant not appearing thereto, judgment was given against him by default. Afterwards plaintiff procured a certified transcript of this judgment and filed the same in the office of the clerk of the circuit court of the city of St. Louis, as provided by our statute. Execution, was duly issued thereqn and levied upon property owned by the defendant. Afterwards the defendant filed the motion referred to, moving the circuit court to set aside the judgment of the justice which had then, by virtue of the statute, become parcel of the records of the circuit court. To meet this, plaintiff filed a paper which he denominated a demurrer. This paper, whatever it was,' challenged the sufficiency of the grounds set forth in defendant’s motion for setting aside the judgment referred to. The grounds contained in defendant’s motion to set aside the judgment may be resolved under two heads: that is, the first group are such as might be sufficient for the writ of error coram nohis at common law; and the second, are grounds of fraud. The first grounds alleged pertain to the fact that defendant was a resident of the city of St. Louis and was proceeded against as though he were a non-resident. That is to say, the motion alleges that the defendant was at all times a resident of the city of St. Louis and that although the justice issued a notice to be served upon him, the constable failed to make personal service there*59of and returned it, reciting that, defendant could not be found; that upon this showing, notice by publication was given, as though he were a non-resident, to the effect that this cause would be heard on a certain day. It thus appearing that the justice proceeded apon the assumption that defendant was in fact a nonresident when he was a resident of St. Louis, it may be that such is a competent ground at common law to set aside the judgment .by a proceeding under the old form of writ of error coram nobis. The point is not decided, as it is entirely unnecessary to do so in this case. See, however, Cross v. Gould, 131 Mo. App. 585, 110 S. W. 672.

The other ground brought forward in the motion to set aside the judgment is to the effect that the plaintiff in the case fraudulently represented to the justice that defendant was in fact a non-resident of the city of St. Louis and thus procured the justice to issue notices and proceeded against him as though he were in fact a nonresident. This ground, of course, asserts fraud on the part of plaintiff in the act of procuring the judgment and is a competent ground upon which a court may set aside a judgment thus procured, on motion. [Downing v. Still, 43 Mo. 309; Cross v. Gould, 131 Mo. App. 585, 110 S. W. 672.] And it may be on the authorities cited that the court erred in sustaining plaintiff’s paper which he denominated a demurrer, challenging the sufficiency of these grounds for relief. A demurrer is a pleading under our law and of course a pleading of this character will not lie to challenge the sufficiency of a mere motion. Nevertheless the paper interposed in this instance was so denominated and on the challenge therein contained, the court declared as a matter of law that the grounds asserted in plaintiff’s motion to set aside the judgment were insufficient.

However all of this may be, and whatever the paper was by which the plaintiff challenged the sufficiency of this motion to set aside the judgment, the motion itself *60is nothing more nor less than a motion. It is so denominated by its author. It is in no sense a pleading in the cause. Its author denominated it a motion and the record so denominates and treats it. Under the ruling in this State, relief sought in the character of the proceeding here disclosed, is by motion to set aside the judgment. Our courts have frequently so declared. It is true this motion predicates in part upon equitable grounds which would no doubt support a bill in equity on the grounds of fraud perpetrated in the act of procuring the judgment. [Hamilton v. McLean, 139 Mo. 678; Mayberry v. McClurg, 51 Mo. 256; Cross v. Gould, 131 Mo. App. 585, 110 S. W. 672.] Nevertheless the relief sought is within the purview of such motions, as frequently decided, and in this particular instance, it was sought by motion. As to the grounds coram nobis; this ancient writ is superseded in our practice by the modern motion to the same effect. See Downing v. Still, 43 Mo. 309; Cross v. Gould, 131 Mo. App. 585, 110 S. W. 672; Fisher v. Fisher, 114 Mo. App. 627. The point we desire to emphasize is that such a motion is a proper remedy and that the defendant elected to proceed by motion rather than by bill in equity or by the writ of error coram nobis. From this it results, of course, that the matter before the court is an appeal from the ruling on a motion and not from an order or judgment on a pleading. Defendant having chosen his remedy and proceeded by motion interposed in the case, it devolved upon him to preserve an exception to the ruling of the court and to preserve the motion as well in a bill of exceptions to have the matter reviewed on appeal. It is certain that such motions are not pleadings, nor are they any part of 1;he record proper. The record proper consists of the petition, summons, and all subsequent pleadings, including the verdict and judgment; and these matters the law has made it our duty to examine and review, even though no exceptions be preserved with *61respect thereto. However, the rulings of the court on mere motions interposed in the case are matters of exception only, and unless the motion itself is preserved in the hill and an exception to the action of the court in ruling thereon, the matter is not open to review here. [Bateson v. Clark, 37 Mo. 131, 134.] It appears plaintiff preserved’ no exceptions whatever to the action of the court on the motion referred to. He has presented no hill of exceptions here. The few matters before us appear in the alleged transcript as though they are of the record proper. In such circumstances, we are not permitted to review the action of the trial court on a mere motion which seeks only to set aside a judgment and recall and quash an execution. The identical question with respect to motions having for their purpose the recall and quashing of execution, has frequently been decided in this State. It is true, a motion for new trial is not a prerequisite to a review of such motions filed after judgment. In this respect, such motions are said to stand on a different footing from the usual motions interposed in the case; that is, in this respect, such motions filed after judgment seem to enjoy a special prerogative over the usual motions other than those which result in the determination of the whole case. [City of St. Louis v. Brooks, 107 Mo. 380, 383; Aultman v. Daggs, 50 Mo. App. 280, 288; In re estate of Howard, 128 Mo. App. 482, 490.] Notwithstanding this special prerogative accorded to motions filed after judgment which permits a review in the appellate court, even though the ruling thereon is not referred to in the motion for new trial, it is nevertheless essential to preserve an exception at the time of ruling and exemplify the same here by bill of exceptions, duly filed. This rule obtains as a prerequisite to the right of review in the appellate court. See the following cases in point: City of St. Louis v. Brooks, 107 Mo. 380, 384; Ecton *62v. K. C. O. S. Ry. Co., 56 Mo. App. 337; Corby v. Tracey, 62 Mo. 511.

The judgment will be affirmed. It is so ordered.

Reynolds, P. J., and Goode, J., concur.