Powell v. Gott

13 Mo. 458 | Mo. | 1850

NAPTON, J.

This was a motion to set aside a judgment obtained against an infant who appeared by attorney. The judgment was rendered in 1841, and the motion -was made in 1847, about two years after the defendant attained his majority. The motion was supported by several affidavits, both of the petitioner and others of his family to establish the truth of the facts stated therein. The motion was overruled by the Circuit Court.

• This is in the nature of a writ of error corum vobis. The object of this motion is to correct an error in fact, upon which certain proceedings in law have been based. The objections taken to the motion hero, are first, that the motion came too late, having been made after the infant attained his full age; second, that our statute of limitations upon writs of error, and the 8th section of the 7th article of the act concerning Practice at Law, constitute a bar from lapse of time. The section above referred to provides, that judgments in any oourt of record shall not be set aside for irregularity, on motion, unless such motion be made w'ithin five years after the term such judgment was rendered.”

This section wre deem inapplicable to the present motion, for the reason, that the entering of a judgment against an infant is not an irregularity, but an error. Ex-parte Toney, 11 Mo. R. 608. Nor do we think the limitation of five years, fixed by our statute which regulates writs of error to the Supreme Court, applicable, because the error complained of here is not one of law, but of fact. The whole of our act regulating the practice in the Supreme Court, and writs of error generally, most manifestly is intended to apply to writs brought to correct errors of law. There is no limitation to be found in our statute book to a writ of error ooram, vobis — or a proceeding to correct a judgment of law founded upon an error of fact. The rare occurrence of such proceedings has doubtless caused them to be overlooked by the Legislature. Tixe qourts have no power to supply the omission.

The first objection is not tenable. The old rale for setting aside fines and recoveries, on account of the infancy of the party levying the fine or suffering the recovery, is not at all analogous, to the present case. These were kinds of record conveyances, equivalent to judgment — and the question of infancy was passed upon by the courts, when they permitted the fines or recoveries to be had. The judges were specially directed by the act of Parliament, under which these proceedings were had, to see that the party appearing and acknowledging the fine was of full age. But in the present case, the party appeared by attorney in the usual way, and the fact of infancy was not passed upon(^a). It was assumed that the party was of full age, and the whole proceeding was based upon that assumption. It is now asserted that the fact was otherwise, and there is nothing on record to debar the defendant from so asserting. Judgment reversed and cause remanded.

a (a) Copeland v. Yokuro, 33 Mo. R. 319.