Opinion
Opinion filed September 12, 1933.
1. — Judgment — Review Of by Writ of Error Coram Nobis — Function of Writ. The writ of error coram nobis lies for the purpose of obtaining a review of a final judgment by the same court which rendered it with respect to some error of fact affecting the validity and regularity of the judgment.
2. — Judgment — Review Of by Writ of Error Coram Nobis — Matters Not Reached by Same. Only such errors can be assigned as are consistent with the record before the court and the court will not look into the cause of action on which final judgment was rendered or consider facts which might have been presented to the court on the trial of the cause and still less any facts that were in issue and adjudicated upon the trial.
3. — Judgment — Review Of by Writ of Error Coram Nobis. Where the court affirmed the report of Commissioners in a drainage project and found plaintiff owned certain acreage and directed an assessment of benefits to be levied thereon, which finding is attacked as erroneous in this proceedings, the relief sought cannot be granted on the writ of error coram nobis.
4. — Appellate Practice — Writ of Error Coram Nobis — Power to Treat as Proceedings in Equity. Where the writ of error coram nobis is employed to modify a final judgment for mistake of fact adjudicated by the judgment, this court on appeal cannot consider the case as one in equity.
Appeal from the Circuit Court of Lincoln County. — Hon. Edgar B. Woolfolk, Judge.
REVERSED.
Omer H. Avery for appellant.
(1) A writ of error coram nobis is a common law remedy to review a judgment by the same court in which the record lies, for error of fact as distinguished from error at law, and was proper at common law where the court had assumed the existence of a material fact which did not exist, and the absence of which deprived the court of power to attain a valid result, but would not lie for errors arising on facts submitted to a jury, referee, or to the court as a trier of fact, nor for the purpose of correcting an error of law. Cross v. Gould, 131 Mo. App. 585. (2) Writ of error coram nobis will lie only in cases where the court has proceeded on the assumption that a fact existed which was material to its right to proceed, when the fact did not exist at all, and has no application to a case where the court was required to, and did, find the fact conferring jurisdiction from extrinsic evidence. Smith v. Young, 136 Mo. App. 65. (3) Writ of error coram nobis is not a writ of right, but is granted or refused, in the discretion of the court, on affidavits or evidence, though the court, in passing on the application for the writ, should not consider any facts that might have been put in evidence by defendant, had he been placed on trial in the case. State v. Wallace, 209 Mo. 358. (4) One may not have an order corrected on a motion in the nature of a writ of error coram nobis, where the fact on which the right is based, could, with the exercise of any diligence, have been known by him before the order, when it should have been brought to the court's attention. Reed v. Bright, 232 Mo. 399; Hadley v. Benero, 103 Mo. App. 549. (5) Writ of error coram nobis is the proper proceeding to reach an error of fact concerning a matter vital to the jurisdiction of the court. State ex rel. Brown v. White, 75 Mo. App. 257. (6) Such a writ will lie when the court has committed an error of fact vital to its jurisdiction, though such error does not appear on the face of the proceeding. State ex rel. Smith v. Clarkson, 88 Mo. App. 553. (7) Since error coram nobis will not lie only if facts dehors the record were unknown, and could not have been known with diligence, and if known, or should have been known, would have prevented the judgment, where the only fact unknown to the court was that defendant had for nearly three years after appearance and answer laid by without inquiry or excuse, and only filed motion to vacate a judgment against him three months after its rendition, held such defendant not to have brought himself within the required conditions. Fox Miller Grain Co. v. Stephans, 217 S.W. 994. (8) A writ of error coram nobis does not authorize a court to review generally its adjudications after lapse of term at which they are made, but is allowed only to recall some adjudication made while some fact existed which, if before the court, would have prevented the adjudication, and which without fault or negligence of the petitioner was not before the court. Hartford Fire Insurance Co. v. Stanfill, 259 S.W. 867. (9) The law is that the writ of error coram nobis does not lie if the complaining party knew the fact complained of at the trial, or by reasonable diligence could have known it, or was otherwise guilty of neglect. 4 Enc. Pleading and Practice, 29; Jackson v. Milson, 6 Lea. 515; Marble v. Van Horn, 43 Mo. App. 361; Branden v. Diggs, 1 Heisk. 472; Hadley v. Bernero, 103 Mo. App. 563; McKinley v. Buck, 43 Mo. App. 488; 1 Freeman on Judgments, 94; Abbell v. State, 62 Kan. 214; State v. Stanley, 225 Mo. l.c. 532. (10) There is still another reason why the motion filed in the case cannot be entertained as a writ of error coram nobis; i.e., said motion attacks the record and the verity thereof. This can never be done by writ of error coram nobis. The error of fact charged in the petition or motion for a writ of error coram nobis must be consistent with the record in the case. In 5 Enc. Pl. Pr., page 34, "general rule" is stated thus: "The petition should not assign as error any fact adjudicated in the former suit, or any fact which contradicts the record." (11) No judgment of a court of record shall be set aside for any irregularity, on motion, unless such motion be made within three years after the term at which judgment was rendered. Sec. 1101, R.S. Mo. 1929. (12) The landowners in the Kings Lake Drainage District were interested and necessary parties, and were not joined in this action, it being the duty of plaintiff to see that all interested persons are made parties to the action. Harper v. Hudgings, 211 S.W. 63; Carson v. Hecke, 222 S.W. 850.
Williams Huston and Rassieur, Long Yawitz for respondent.
(1) A motion in the nature of a writ of error coram nobis lies to correct a judgment for errors of fact, unknown to the court, which, if known at the time of the rendition of the judgment, would have prevented the rendition thereof, and which fact without fault or negligence of the complaining party was not presented to the court. Simms v. Thompson, 291 Mo. 493, 236 S.W. 876; State ex rel. v. Riley, 210 Mo. 667, 118 S.W. 647; Cross v. Gould, 131 Mo. App. 585, 110 S.W. 672; Jeude v. Sims, 258 Mo. 26, 166 S.W. 1048; Mefford v. Mefford, 26 S.W.2d 804; Moutier v. Sherman, 25 S.W.2d 490; Hecht Bros. Clothing Co. v. Walker, 35 S.W.2d 372. (2) The fact of error involved must be a fact not theretofore brought to the attention of the trial court or adjudicated by it. 2 R.C.L. 309; 34 C.J., Judg., par. 504; Graves v. Graves, 255 Mo. 468; Hecht Bros. Clothing Co. v. Walker, 35 S.W.2d 372; Mefford v. Mefford, 26 S.W.2d 804. (3) Drainage and levee proceedings are actions in rem, and if the court proceeded upon the theory of the existence of certain lands within the drainage district, when in fact said lands did not exist, a judgment based on such assumption should be set aside for error of fact. City of St. Louis v. Koch, 169 Mo. 587; 20 C.J., Em. Dom., p. 874; Thompson v. The Chicago S.F. C. Ry. Co., 110 Mo. 147; State ex rel. v. Trimble, 272 S.W. 66; City of Moberly v. Hogan, 298 S.W. 237.
This is a proceeding by motion in the nature of a writ of error coram nobis, filed by Christopher Winkelmeyer, in the Circuit Court of Lincoln County, on March 15, 1932, to modify the judgment of the circuit court assessing benefits against his lands situate in the Kings Lake Drainage District. The judgment assessing the benefits was entered on September 30, 1920.
Kings Lake Drainage District was organized under the provisions of Article 1, Chapter 28, Revised Statutes 1919.
The present motion in the nature of a writ of error coram nobis alleges that on September 30, 1920, said Circuit Court of Lincoln County entered its judgment against lot 3 of United States survey 1679, in Lincoln County, Missouri, in the sum of $9,405, for benefits for the making of the improvements contemplated by said drainage district, and by its said judgment assessed benefits against lot 1 of United States survey 1678, in Lincoln County, Missouri, for the making of said improvements, in the sum of $1,104; that in determining the benefits enjoyed by lot 3 of United States survey 1679 the court found and determined that said lot contained 165 acres, and assessed benefits against said lot at the rate of $57 per acre, or $9,405; that the court was misled in determining the benefits in that instead of containing 165 acres said lot contained only 82.51 acres, so that instead of assessing benefits against said lot in the sum of $9,405, had the court been advised of the true facts as to the number of acres contained in said lot it would have assessed the benefits at $4,702.50; that in determining the benefits enjoyed by lot 1 of United States survey 1678 the court found and determined that said lot contained twenty-three acres, and assessed benefits against said lot at the rate of $48 per acre, or $1,104; that the court was misled in determining the benefits in that instead of containing twenty-three acres said lot contained only 20.08 acres, so that instead of assessing benefits against said lot in the sum of $1,104, had the court been advised of the true facts as to the number of acres contained in said lot it would have assessed the benefits at $963.84.
The commissioners appointed to assess damages and benefits, in their report duly filed, assessed benefits against lot 3 in survey 1679 at $9,405, stating that the lot contained 165 acres, and assessed benefits against lot 1 in survey 1678 at $1,104, stating that the lot contained twenty-three acres. Upon the hearing of the commissioners' report, the court confirmed the report and adjudged that the drainage district be empowered to levy of the benefits assessed against all the lands in said district, not to exceed ninety per cent thereof, such amounts for taxes as should be necessary to pay the bonds issued by said district to complete the work of said district and fully put into effect the plan for reclamation.
Upon the trial of the present proceeding, Andy J. Brown testified that he made a survey of the lots in question at the instance of Mr. Winkelmeyer in October, 1931, and found that lot 3 contained 82.50 acres, and that lot 1 contained 20.08 acres. He also testified that he was chief engineer of the drainage district, and made the necessary surveys, made out a report of the plan for reclamation, and aided the commissioners in their work of assessing damages and benefits. He was unable to remember how the acreage of the lots in question was arrived at as stated in the commissioners' report, or how the error occurred in the statement of the acreage in the report.
The trial of the present proceeding resulted in a judgment reducing the benefits assessed against lot 3 to $4,702.50, and reducing the benefits assessed against lot 1 to $963.84. To reverse this judgment the drainage district has appealed to this court.
The writ of error coram nobis, or a motion in the nature of a writ of error coram nobis, lies for the purpose of obtaining a review of a judgment by the same court which rendered it with respect to some error of fact affecting the validity and regularity of the judgment. As is implied in the term itself, the writ is used to obtain a review by the court of its own judgment, as distinguished from a review by an appellate court. The writ lies to review and reverse a judgment for error of fact as distinguished from error of law. It does not lie for defenses available at the trial, nor for newly discovered evidence. It lies for error of fact, not appearing on the face of the record, which fact was unknown to the court, and which, if it had been known, would have prevented the rendition and entry of the judgment. The writ will not lie where the party complaining knew the fact at the time of the trial, or by the exercise of reasonable diligence might have known it. Only such errors can be assigned as are consistent with the record before the court, and the court will not look into the cause of action on which the judgment was rendered, or consider any facts which might have been presented to the court on the trial of the cause, and still less any facts that were in issue and adjudicated upon the trial. The writ cannot be used to falsify the record. It lies to reverse a judgment rendered against a party after his death, or a judgment against an infant, or a judgment against a married woman, or a judgment against an insane person, such death, infancy, coverture, or insanity, being unknown to the court, at the time of rendering the judgment. It is not the office, nor within the purview, of the writ to give a new trial merely because of some latent matter of fact unknown to the court or party litigant going to the merits of the cause. The unknown fact to authorize the writ must be of such a character as would, if known, disable the court from rendering the judgment, as if, as before stated, the party was dead, or an infant, or a femme covert, or a lunatic. The writ may not be used as a substitute for a motion for a new trial. The latent fact unknown to the court authorizing the writ may consist in some matter of process or misprision or fault of the clerk. In other words, as we understand the authorities, the writ lies not for some unknown fact going to the merits of the cause, but for some unknown fact going to the right of the court to proceed, and which entirely defeats the power of the court to attain a valid result in the proceeding. [Simms v. Thompson, 291 Mo. 493, 236 S.W. 876; Graves v. Graves, 255 Mo. 468, 164 S.W. 496; Jeude v. Sims, 258. Mo. 26, 166 S.W. 1048; State v. Stanley, 225 Mo. 525, 125 S.W. 475; Reed v. Bright, 232 Mo. 399, 134 S.W. 653; Callicotte v. Chicago, R.I. P. Ry. Co. (Mo.), 204 S.W. 528; Marble v. Vanhorn, 53 Mo. App. 361; Hadley v. Bernero, 103 Mo. App. 549, 78 S.W. 64; Moutier v. Sherman (Mo. App.), 25 S.W.2d 490; Mefford v. Mefford (Mo. App.), 26 S.W.2d 804; Hecht Bros. Clothing Co. v. Walker (Mo. App.), 35 S.W.2d 372.]
It is obvious that the facts relating to the acreage of the lands in question here alleged to have been unknown to the court go to the merits of the cause. The ultimate matter for adjudication of the court upon the hearing of the commissioners' report was the amount of the benefits accruing to the lands by reason of the improvements to be made according to the plan for reclamation. The facts relating to the acreage of the lands were facts material to the determination of these benefits. So were the facts relating to the elevation of the lands, the acreage subject to overflow, the acreage not subject to overflow, the location of the lands with respect to the drains and ditches to be made under the plan for reclamation, the fertility and productiveness of the soil, the contour and general lay of the lands; the adaptability of the lands to cultivation, or other uses, and all the facts going to show the extent of protection afforded the lands by the improvements to be made. It is evident that all such matters have to do with the merits of the cause, with respect to which the owner of the lands had his day in court upon the hearing of the commissioners' report. To grant the relief sought in this proceeding would be to falsify the record, put in issue adjudicated facts, and retry the cause on its merits. The writ of coram nobis does not lie to give such relief.
Whether or not equity would give relief under the facts disclosed by this record is a question as to which we refrain from venturing an obiter opinion. Sufficient unto the day is the evil thereof. This is not a suit in equity, and we are not permitted to treat it as such. [Jeude v. Sims, 258 Mo. 26, l.c. 42, 166 S.W. 1048.] The parties did not so treat it in the court below, but treated it as a motion in the nature of a writ of error coram nobis, and have so treated it here.
The Commissioner recommends that the judgment of the circuit court be reversed.
The foregoing opinion of SUTTON, C., is adopted as the opinion of the court.
The judgment of the circuit court is accordingly reversed. Becker, P.J., and Kane and McCullen, JJ., concur.