Hirsh v. Weisberger , 44 Mo. App. 506 ( 1891 )

Thompson, J.

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 brought to the attention of the court by evidence aliunde. The former is subject, by the terms of the statute, to a limitation of three years ; the latter is not subject to any distinct statute of limitation. Latshaw v. McNees, 50 Mo. 381. The former is a motion in the original suit, and not a separate action; and for this reason an appeal or writ of error does not lie from an order, sustaining the motion and reinstating the cause on the docket; but the remedy of the other.party is to take a bill of exceptions, proceed no further in the cause, suffer a final judgment to go against him, and then prosecute his appeal or writ of error. State ex rel. Merrill v. Burns, 66 Mo. 227. The latter is in the nature of a new action, analogous to the writ of error. It necessarily depends upon the production of extrinsic evidence, for the error does not appear upon the record as in the case where the remedy is the ordinary writ of error. There must be a trial of an issue of fact; and if this trial results in depriving the plaintiff of the judgment, which he has recovered and which appears to be regular on its face, it may be assumed (though it is not necessary so to decide), that he may at once prosecute an appeal or writ of error to reverse the order reinstating the cause. The distinctive test, by which to determine whether a proceeding in a given case is the one or the other, would seem to be to consider whether the irregularity or error of fact arises on the face of the record proper, or must necessarily be disclosed by the production of extrinsic evidence.

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 something that is necessary for the due and orderly conducting of a suit, or doing it in an unseasonable time, or improper manner, and in general is either in t"he mesne process, or the proceedings thereon before judgment, or in the judgment or execution.” Branstetter v. Rives, 34 Mo. 318. Instances of such irregularities are found in the entering of a judgment by default against a defendant before the time has expired in which the law allows him to answer (Branstetter v. Rives, supra) ; the making of such a judgment final at the same term, where the action is not founded on a bond, bill, note, etc. Lawther v. Agee, 34 Mo. 372. On the other hand, the nature of a proceeding in the nature of a writ of error coram nobis is suggested by a case, where a judgment was entered against a defendant who had not been served with process, as upon an appearance by an attorney, when in point of fact the attorney had not been authorized to appear for him, — this necessarily involving an inquiry of fact, as to whether he had authorized the attorney to appear (Craig v. Smith, 65 536); or where a judgment had been in a proceeding for taxes upon a publication against a defendant, who at the time resided and was within the jurisdiction, — this equally depending upon an inquiry of fact. State ex rel. v. Heinrich, 14 Mo. 146.

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; but that an order naming’ another defendant as Frank Strimple, the name by which he was usually known, was not void, although his baptismal name was Benjamin F. Strimple. The language of some of the decisions intimates that a defect of procedure, such as renders a judgment absolutely void, is not an irregularity under the statute we are considering. The decision of the supreme court in Elting v. Gould, 96 Mo. 535, shows that such an irregularity, as the one now under consideration, may or may not render a j ndgment void according to extrinsic circumstances. In that case there had been an order of publication against a defendant by the name of R. O. Elting in a proceeding affecting his title to the land, but, as it appeared that the land had been patented to- him by the United States in the name of R. O. Elting, it was held that a judgment founded upon such a publication was not void. The court distinguished the decision in Skelton v. Sackett, 91 Mo. 377, on the ground that in that case the order of publication was addressed to Q. R. Roland, while the land had been patented to him, as shown by the recorded patent, in the name of Quinces R. Noland. A comparison of these two decisions will be sufficient to show that a judgment founded upon a publication addressed toa party by his initial only, instead of giving his Christian name, may or may not be void according to circumstances. But whether it is the one or the other, it cannot be doubted that it is an irregularity, and it is plain that it is an irregularity appearing on the face of the record itself; for the order of publication is a part of the record.

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 canse would or would not be subject to reversal. Being of opinion that there is in this case no final judgment or order from which an appeal lies, the judgment of the court is that the appeal be dismissed. It is so ordered.

All the judges concur.