103 Mo. App. 549 | Mo. Ct. App. | 1903
— Plaintiffs Leo G. Hadley and others obtained judgment against the defendants David Bernero and others, October 18, 1901, in an unlawful detainer action before a justice of the peace. Defendants appealed to the circuit court from the justice’s judgment eight days after it was rendered. This appeal was not in time as the circuit court was then in session, as now appears, and the statutes require the appeal from a justice’s judgment in an unlawful detainer case to be taken in six days after judgment, if the court to which it lies is then holding a term. We suppose the fact that the appeal was too late was not called to the attention of the circuit court, and it may not have occurred to either of the parties. At all events, the cause was tried anew, with the result that judgment was again entered against the defendants, who again appealed and the cause came
After the affirmance of the judgment, the defendant filed a motion in the nature of a writ of error cor cum nobis in the circuit court to vacate its judgment, assigning as ground for the motion, the tardy appeal from the magistrate’s judgment. Proof was made that the circuit court was in fact sitting-when the judgment was rendered; but the motion coram nobis was overruled, notwithstanding that proof, and defendants have again appealed to this court from the order overruling the motion.
An appeal from a judgment of a justice of the peace in an unlawful detainer action given during term time of the court to which the appeal lies, must be taken within six days after judgment, on pain of the appeal being, dismissed; as has been decided frequently. Robinson v. Walker, 45 Mo. 117; Bauer v. Cabanne, 11 Mo. App. 114; Hastings v. Hennessey, 52 Mo. App. 172. An appeal in other litigation will fail if allowed after the lapse of the statutory period for appealing. State v. Epperson, 4 Mo. 90; State v. Anderson, 84 Mo. 524; St. Louis v. Gunning Co., 138 Mo. 347. According to the opinions in those cases, the circuit court acquires no jurisdiction over the subject-matter of the action, if an appeal is too late; a statement that seems to be too broad and to intend rather that the court appealed to obtaines no jurisdiction of the particular case. Jurisdiction over the
In Gates v. Tusten, supra, an attachment suit was brought against the defendants in Jackson county by publication, they being non-residents. The judgment
“It is one of the fundamentals of the law that where the record of a court of general jurisdiction shows that it assumed to exercise jurisdiction over a person or subject-matter, in the absence or silence of the record as to any fact showing the acquisition of jurisdiction, or how it was acquired, then jurisdiction is presumed; for the rule is that ‘nothing shall be intended to be out of the jurisdiction of a superior court but which specially appears to be so.’ ”
In Schad v. Sharp, supra, an ejectment case, the jurisdiction of the circuit court of Morgan county was questioned in the Supreme Court, because the record did not show affirmatively the land sued for was in that ■county. But the record nowhere showed the land was not in Morgan county, and it was ruled that the circuit ■court would be presumed to have rightly exercised its jurisdiction. '
. Probate courts must often determine their power to grant administration on estates, when the power turns ■on extrinsic facts; such as where the mansion house of the deceased was, or his lands, or where he died, and 'ether- matters. The rule is now established, after some wavering in the decisions (based.on the fact that pro
Appeals are of statutory origin and in entertaining them an appellate court does not proceed according to the course of common law; but, nevertheless, the presumption in favor of the right exercise of jurisdiction has been held to prevail; and if the circuit court hears and decides a cause appealed from a justice’s court, the appeal will be presumed to have been taken within the time allowed by law, unless the record shows it was not. City of Kansas v. Clark, 68 Mo. 588; Feurth v. Anderson, 87 Mo. 354. In recognition of the foregoing principles and authorities we held, in the former decision of this case, that it must be presumed the circuit court rightly entertained and determined the controversy. We held, too, that said court could take judicial notice of its sessions and adjournments, and that it was unnecessary, in order for it to determine the question of its power to hear the cause, to make proof that the appeal was, or was not, taken in time. Bauer v. Cabanne, 11 Mo. App. supra. We further held and decided that this court could not take judicial notice of the adjournments of the circuit court, and, therefore, could not decide the appeal from the justice’s judgment was too late, in the absence of evidence to show the fact.
It is not easy to see what kind of a direct attack other than an appeal or writ of error, can be made on a judgment for lack of jurisdiction to render it, when the record does not show the lack, if the instance is one where the necessary jurisdictional facts are presumed to have been found; for it looks like the finding would render the question of the existence of the facts res judicata. While there are modes of attack which are classed as direct and, therefore, as permitting proof of facts in pais to vacate a judgment (such as a bill in equity, writs audita querela, and coram nobis) it is debatable if in instances like this one, the attack by appeal or writ of error is not the only method to seek relief. One must speak dubiously on the subject because of the discordant décisions. An attack on a judgment may be made in a manner usually spoken of as direct, and yet the circumstances be such as to deprive the mover of fhe prerogatives that commonly pertain to direct attacks. Morrill v. Morrill, supra, note p. 105; Vanfleet, Coll. Attacks, sec. 2, 3; Harmon v. Moore, 112 Ind. 221; Reid v. Mitchell, 93 Ind. 469. In the decision last cited a petition was filed to set aside a judgment on the ground that it was rendered against the petitioners by
In Truesdail v. McCormick, 126 Mo. 39, a petition by a married woman to vacate a judgment rendered ag’ainst her as void because of her coverture was declared to be plainly a collateral attack. The equities of the matter, and the rights of third parties, influence the result of proceedings against judgments, whether they be what are styled direct or collateral; and it looks as though some confusion had been introduced into the law by speaking of the same proceeding as direct in some instances and collateral in others; instead of saying that such a proceeding, although properly called a direct one, will not prevail when the justice of the matter requires it to fail.
We are confident that the motion coram nobis, does not lie to vacate a judgment for the reason assigned in the present motion. After considerable research we have found no instance, nor have we been cited to any, of the use of the procedure for such a purpose.
In Craig v. Smith, 65 Mo. 536, a motion coram nobis was entertained to set aside the judgment because one of the defendants had not been served, the sheriff’s return showing no service and it appearing by testimony that, in fact, he was not served. The opinion states that the propriety of the motion for the purpose was not called
In Marble v. Van Horn, supra, it is said “that where the party complaining knew the fact, or might have known it and failed to bring it to the attention of the court, he can not afterwards do so. Thus: A man' shall never assign that for error which he might have pleaded in abatement; for it shall be accounted his folly to neglect the time of taking that exception.’ ” That language was used in a case wherein the motion coram nobis had been used to have costs re-taxed, and an appeal was taken from the judgment taxing the costs on the motion. The costs had been re-taxed because certain witnesses appeared by the return of a subpoena to have been summoned prior to the date of the subpoena. It was held that the costs were improperly re-taxed because, in truth, the witnesses had been subpoenaed under a. previous subpoena, and but for the false appearance due to the second subpoena, the judgment on the motion to re-tax costs would have been different. It was ruled, however, that the truth might have been ascertained by proper effort; and that as the circuit court passed on the facts, though erroneously, the motion coram nobis could not be invoked to have a matter formerly decided, again examined; citing McKindley v. Buck, 43 Ill. 488. On this proposition the opinion says that the fact relied on in the motion must have' been previously unknown to the court; for if it was known and the court decided erroneously or irregularly, the error was one of law to be corrected on appeal. This coincides with our view that these defendants could have presented this question on the former hearing, if they had introduced evidence at the trial to show the circuit