485 S.W.2d 80 | Mo. | 1972
This is an appeal from an order and judgment striking from the files appellant’s motion, filed September 8, 1969, which sought to set aside a consent decree entered June 11, 1965, in a suit in equity.
Appellant’s notice of appeal filed December 18, 1969, purports to effect an appeal from both the consent decree entered June 11, 1965, and the above referred to judgment striking appellant’s motion from the files. Respondents have moved to dismiss the appeal from the consent decree on the grounds (1) that the notice was not timely filed, and (2) appellant waived his right to appeal from the consent decree, as shown by that decree. The motion is sustained and the appeal from
Respondents, Alois J. Ratermann, Edward E. Ratermann, Marcella Ratermann Sheridan and Mary Ratermann Mollerus, and the appellant, Robert E. Ratermann, are brothers and sisters and children of Al and Theresa Ratermann who died in 1957 and 1958, respectively. For convenience and clarity we will refer to respondents as plaintiffs and the defendant-appellant, Robert E. Ratermann, as movant.
This protracted litigation, of which this appeal is the latest, began in 1959, and involved several classes of action,
In the process of consolidation of the suits movant was, for the first time, made a party defendant in this litigation.
The consolidated suit was set for hearing and trial commenced January 26, 1965. Plaintiffs completed their evidence that day. Movant represented himself and began introduction of evidence in support of his answer, counterclaim and cross-claim. The proceedings at which this evidence was introduced, accompanied by frequent objections and bitter argument, continued through January 27 and 28, and February 10 and 11.
On February 12, 1965, the hearing was continued until March 29, 1965, when it was shown that movant was being treated by Dr. Murray Finn, a psychiatrist. On March 29, Ellis Gregory, a lawyer and office associate of movant, appeared in his behalf and moved for a continuance for six months. The motion was accompanied by an affidavit by Dr. Finn stating that
On April 20, 1965, Mrs. Helen Ratermann appeared and informed the court that her husband had entered a hospital the night before and was still under the care of Dr. Finn. Counsel for plaintiffs stated they would not resist a continuance, but would like to inquire into the question of whether a guardian ad litem should be appointed. Dr. Finn was examined on this question and testified that movant’s condition could be described as “obsessed, compulsive personality * * * This indicates a lifelong history of anxiety, tension, and a tendency towards obsessive thinking.” As to movant’s present health status, Dr. Finn further testified:
“Q Is it your opinion that his emotional health at this time is such that he could effectively consider settlement now ?
“A I feel it could be discussed at this point. I have all along said that he is mentally competent, as far as making decisions, I certainly think it could be discussed and see what happens.
“Q You think there could be such a discussion, without immediate danger to his emotional and physical health ?
“A I would say so.”
After this testimony, the court reset the case for September 13, for continuation of the trial, and set a hearing for August 2 to determine whether or not a guardian ad li-tem should be appointed.
Thereafter settlement negotiations were begun, all parties to the suit were able to reach a compromise of their differences, and the case was settled. The terms of the settlement were reduced to writing and put in the form of a consent decree to which was attached an “approval” bearing the signatures of movant, his counsel, and counsel for all other parties.
On June 11, 1965, counsel for plaintiffs, counsel for movant and counsel for all other parties appeared in open court and presented the decree to the trial judge for approval and entry. After the court inquired into the matter of movant’s satisfaction with and understanding of the decree, it was approved by the court and entered of record.
On September 8, 1969, the motion to set aside the consent decree was filed by mov-ant and his wife.
Movant contends that the court erred in striking his motion because the motion is in the nature of a petition for a writ of error coram nobis, a remedy for setting aside a final judgment on the ground of duress or fraud in its procurement, which remedy, he says, is not limited or barred by the lapse of time. Movant further contends that the facts stated in his motion must, for the purposes of this appeal, be considered to be true, and, so considered, are sufficient to demonstrate not only that he is entitled to relief, but also that the motion is the proper remedy rather than a separate suit in equity. Plaintiffs, on the other hand, contend not only that a separate suit in equity is his only remedy (if he has one) and that, for that reason, the motion will not lie, but also that movant has failed to allege facts sufficient to state a claim for relief either by way of a writ of error coram nobis or a separate suit in equity.
The rule is, as noted, that the trial court has control over its judgments for only thirty days, Civil Rule 75.01, and upon the lapse of that time it becomes final and the court thereafter has no power to modify or vacate it, except upon a proper direct attack. Murray v. United Zinc Smelting Corp., Mo., 263 S.W.2d 351; Bradley v. Bradley, Mo.App., 295 S.W.2d 592; State ex rel. County of Mississippi v. Stallings, Mo., 434 S.W.2d 588, 591 [4].
In City of St. Louis v. Franklin Bank, et al., 351 Mo. 688, 173 S.W.2d 837, 846 [13], this court, en banc, said: “The writ [of error coram nobis] lies only for errors of fact; and not by any means every fact that would make the judgment erroneous. If that were true there would be no need for appeals and writs of error and for statutes setting a time limit on them. The facts must be such as affect the power and right of the court to render the particular judgment — facts which, if known, would have prevented its rendition. In a sense they must be directed against what would have been either a want or abuse of jurisdiction — at least, not mere error — if the facts had been known to the court. Familiar examples are when the judgment was rendered against a decedent, an infant or insane person.” See also: Norman v. Young, 301 S.W.2d 820, 823-824 [6].
The general rule is that without consent of the parties a consent decree will not be opened, set aside or vacated in the absence of adequate grounds, such as want of consent, fraud, collusion, or mutual mistake of fact; also, the motion to set aside must allege adequate grounds. Allen v. Fewel, et al., 337 Mo. 955, 87 S.W.2d 142; Thomas v. Craghead, 332 Mo. 211, 58 S.W.2d 281; Renken v. Sidebotham, Mo.App., 227 S.W.2d 99; Peeters v. Schultz, et al., 300 Mo. 324, 254 S.W. 182. See also 49 C.J.S. Judgments p. 600, § 330(b) and p. 603, § 330(c)(1).
Treating this motion as being in the nature of a petition for writ of error coram nobis, as movant requests, we find
The judgment is affirmed.
. A general description of the four classes or types of action and of the several suits in one of those classes may be found in Ratermann et al. v. Ratermann Realty & Investment Company et al., Mo.App., 341 S.W.2d 280, 284-285.
. He previously had sought but was denied leave to intervene as a party. See Ratermann et al. v. Ratermann Realty & Investment Company et al., Mo.App., 341 S.W.2d 280.
. A member of the Missouri Bar practicing in St. Louis.
. Mrs. Ratermann was not a party, but was filed. i stranger to the suit in which the motion was