44 Mo. App. 506 | Mo. Ct. App. | 1891
In this case a motion to dismiss the appeal has been made on the ground, that the order appealed from is not a final judgment. Owing to the peculiar nature of the question involved in this motion, we have preferred to reserve the consideration of it until after hearing arguments upon the main question involved in the appeal. The action is by attachment against a non-resident. There was a publication against the defendant in the name of A. Weisberger, using his initial only, and not giving his Christian name. The case proceeded, in the ordinary course, to a judgment by default and final judgment, as though publication had been regularly made. At a subsequent term the defendant filed a petition in court to set aside thé judgment for the reason that the- order of publication used his initial, instead of using his real name, which was Aaron Weisberger. The court, after hearing oral evidence in support of this application, granted it, and made an order setting aside the judgment and reinstating the cause on its docket for further proceedings. From this order the present appeal is prosecuted.
We have come to the conclusion, after a careful consideration of the subject, that the appeal must be dismissed. This is either a proceeding under the statute (R. S., sec. 2285) to vacate a judgment at a term subsequent to the term of its rendition for an irregularity appearing on the face of its record, or else it is a proceeding in the nature of a writ of error coram nobis. The petitioner takes the view, that it is a proceeding under the statute, and the plaintiff in the action takes the view that it is an independent proceeding in the nature of a writ of error coram nobis. The distinction between the two kinds of proceeding is marked. The former is grounded alone upon irregularities of procedure which appear on the face of the record; the latter is grounded upon latent errors of fact, which do not appear on the face of the record, but which must be
We are of opinion that the irregularity for which the judgment was set aside in the present case arises upon the record, and that the proceeding was, therefore, a proceeding under the statute, and not a proceeding in the nature of a writ of error coram nobis. Following a text-book of great authority (1 Tidd’s ,Prac. 512), an irregularity under our statute has been defined to be “the want of adherence to some prescribed rule or mode of proceeding ; and it consists, either in omitting to do
Applying these distinctions to the case before us, it seems clear to us that the irregularity, on account of which this judgment was set aside, was an irregularity appearing on the face of the record. It consisted of making an order of publication, in which the defendant was described by an initial, instead of giving his Christian name. In Skelton v. Sackett, 91 Mo. 377, it was held that a judgment depending upon an order of publication against Q. R. Noland, instead of Quinces R. Noland, was void even in a collateral proceeding. In Steinmann v. Strimple, 29 Mo. App. 478, 484, we, following this rule, held that an order of publication, naming a defendant as J. Strimple, was void as to him;
We, therefore, stop here, and refrain from considering the able argument, which has been made against the legality and propriety of the order of the court in setting aside this judgment. We do not feel called upon to intimate an opinion whether, if the plaintiff were to take a bill of exceptions, suffer a final judgment to go against ’him, and then appeal, the order reinstating the