Opinion
No. 21270.
January 9, 1950.
APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, JOHN F. COOK, J.
Franklin D. Glore, Kansas City, for appellant.
Allan M. Fisher, Kansas City, for respondent.
This is an appeal from an order of the trial court overruling appellant's (defendant's) motion to vacate a judgment because of alleged errors patent of record, which errors rendered the judgment irregular and void. The motion was filed after the judgment became final but within three years, as provided by Sec. 1267, R.S. 1939, Mo. R.S.A.
From the pleadings in the case it appears that defendant owned what we shall call Lots A and B, and plaintiff owned the adjoining Lot C.
Plaintiff's petition alleged "* * * that he has a perpetual easement for a driveway over the west 10 feet * * *" of Lots A and B; that plaintiff and his tenants and others "* * * for a period of over twenty years have used said driveway for ingress and egress as a driveway, * * *"; that defendant had obstructed the use of such driveway by the erection of a gate, and prayed that "defendant be restrained and enjoined * * * from obstructing the passageway and driveway over the west 10 feet * * *" of Lots A and B.
Defendant's answer admitted plaintiff's right to an easement over the west 10 feet of her property, but denied that defendant had obstructed the use thereof; the answer also admitted that plaintiff had used the driveway for delivery of fuel and other items to his building but denied that it had been so used for a period of twenty years, and then alleged, "* * * that if all of the driveway has been used as alleged only part of the driveway is within the area described in alleged easement and the other part upon which concrete slab is built is plaintiff's (defendant's?) property not subject to driveway easement, and further states that if plaintiff and others have been using her said property not subject to easement plaintiff states no ground for equitable relief * * *; that trucks had come upon said driveway back upon and over said premises and into her building * * *; that plaintiff although informed that his tenants or employees were using her property for parking place he has done nothing about the same, that plaintiff's tenants block the driveway so as to prevent defendant from using the same, and that the plaintiff through his servants and agents allowed rubbish and other materials to be placed or remain upon driveway and her premises." The prayer of the answer was that plaintiff's petition be dismissed and that the court dissolve the temporary restraining order heretofore entered, "* * * and enjoin and restrain plaintiff or those claiming under him from using defendant's premises or any part thereof, or from using driveway in any manner which is improper, and to further define the use thereof, and for such other and further orders as may be just and proper."
There was no trial on the merits, but sometime after the pleadings had been filed the attorneys for the parties signed and filed in the court a stipulation stating that the court "* * * may enter the following decree and judgment in this cause, to-wit:
"That the defendant, her agents, servants, employees and all persons claiming under her or acting under direction or authority be and are hereby restrained and enjoined from obstructing the driveway easement granted to plaintiff over the West 10 ft. of * * * (Lots A and B), as shown of record as existing against this property, and acquired by plaintiff over the West 17 feet of said lots, and that plaintiff herein be and is hereby enjoined and restrained, * * * from interfering with the property of the defendant not covered by said easement or trespassing upon property of the defendant not covered by easement herein mentioned, * * *." (Italics ours.)
Whereupon the court entered the judgment now being attacked by this motion, the material part of which is:
"* * * the parties having heretobefore stipulated for final judgment and decree in the above matter, and the Court having before it the pleadings in this cause, and order allowing temporary injunction, it is by the court
"Ordered, decreed and adjudged, that the defendant, her agents, servants and employees and all persons claiming under her or acting under her direction or authority be and are hereby perpetually enjoined and restrained from obstructing the driveway easement granted to plaintiff and acquired by him over the West seventeen feet of (Lots A and B) * * *, and it is further
"Ordered, decreed and adjudged, that plaintiff, his servants, agents, employees and all persons claiming under him or acting under his direction or authority be and hereby are perpetually enjoined and restrained from trespassing or interfering with the property and use thereof of the defendant herein upon which the aforesaid easement is located."
After the judgment became final, defendant filed her motion to set it aside "* * * for the reason that said judgment is void because of irregularities patent of record in the following respects to-wit: That the plaintiff * * * filed a petition for an injunction against the defendant herein * * * claiming that the defendant had violated the provision of a certain driveway easement upon and along the W. 10 feet of (Lots A and B) * * *, whereas a judgment was entered perpetually enjoining and restraining defendant from obstructing a driveway easement purported to have been granted to plaintiff over the West 17 feet of said property * * *; that said judgment is not responsive to and did not conform with the plaintiff's petition in that it covers more ground and includes a wider easement than set forth in plaintiff's petition and the pleadings of said cause, and that said defect is apparent on the face of the record and that said judgment is null and void * * *."
At this point it should be stated that defendant's present counsel did not represent her at the time the stipulation was signed and the judgment entered.
Defendant relies upon Sec. 1267, supra, and decisions construing the same, to support her motion. That section reads: "Judgments in any court of record shall not be set aside for irregularity, on motion, unless such motion be made within three years after the term at which such judgment was rendered."
All the cases hold that a motion of this kind must be based upon an irregularity patent on the face of the record and not one depending on proof dehors the record. Stulz v. Lentin, 220 Mo.App. 840, 846, 295 S.W. 487; Boone v. Ledbetter, Mo.App., 200 S.W.2d 601. It is also the settled law that a judgment must conform, not only to the evidence, but also to the pleadings, and a decree outside the record issues is invalid. Schneider v. Patton, 175 Mo. 684, 75 S.W. 155; Riney v. Riney, Mo.App., 117 S.W.2d 698; Riley v. La Font, Mo.App., 174 S.W.2d 857; Friedel v. Bailey, 329 Mo. 22, 44 S.W.2d 9; Presbyterian Orphanage of Missouri v. Fitterling, 342 Mo. 299, 114 S.W.2d 1004; Weatherford v. Spiritual Christian Union Church, Mo.Sup., 163 S.W.2d 916.
There is no dispute about the applicable principles of law. The debatable question concerns the issues made by the pleadings when such pleadings are given a fair but reasonable construction. Defendant's brief directs all her argument to the allegation of plaintiff's petition without giving any consideration to her answer. We must consider the petition and the answer in determining whether the judgment is broader than the issues made by the pleadings. When this is done, we think the question of the location and extent of the easement was an issue. It seems to us that defendant's answer sought an affirmative determination of the question of the location of the easement. This conclusion is supported by the provisions of the stipulation for judgment. We would not recommend the pleadings as being a shining example of clarity, but when they are considered in connection with the stipulation it cannot be said that the judgment is broader than the issues and that the court was without jurisdiction to enter the decree.
However, defendant contends that we cannot consider the stipulation because it is not a part of what she calls the record proper. There is no merit in this contention because the judgment shows on its face that it is based upon the stipulation and we may consider it. See Stevens v. Kansas City Light Power Company et al., Mo.App., 231 S.W. 1006. She also contends that the judgment was not authorized or validated by the stipulation because it was signed by her attorney and not by her personally. This argument is founded on the theory that an attorney of record has no implied authority to sign a stipulation for a judgment against his client. Citing 25 R.C.L., p. 1098, and Krug v. Roberts Cone Mfg. Co., 213 Mo.App. 628, 250 S.W. 621. The stipulation in the Krug case released rights the client had in a judgment which had already been entered; it was not a stipulation for a judgment. In 5 Am.Jur., p. 321, Sec. 101, the rule is stated: "It is quite generally conceded that the control of the attorney, as such, over the conduct of the cause impliedly authorizes him to bind his client by a confession of, or consent to, judgment, and by his consent to orders and judgments made in the progress of the cause and intended to promote the interest of his client. * * * The rule itself is based on a presumption and becomes impotent whenever the presumption is reasonably rebutted." This rule is approved in Parr v. Chicago, B. Q. Railroad Co., 194 Mo.App. 416, at page 422, 184 S.W. 1169, at page 1170, where it is said: "Such presumption naturally attends the acts of attorneys, duly authorized to practice at the bar, and follows from the confidence reposed in them as sworn officers of the court, and the consequent belief in their honor and integrity. Upon this presumption judicial action is time and again predicated, and any other course would lead to interminable confusion and disorder."
Of course a client, by a proper proceeding, may question the authority of his attorney and overcome the presumption, but we are not confronted with that situation because this motion attacks the judgment for an irregularity patent of record and there is no pleading or evidence challenging the attorney's authority.
Defendant also contends that the judgment does not conform to the stipulation because it undertook to authorize a judgment in which the plaintiff should be "enjoined and restrained * * *, from interfering with the property of the defendant not covered by said easement or trespassing upon property of the defendant not covered by easement herein mentioned * * *"; while the judgment reads: "Plaintiff * * * be and hereby are perpetually enjoined and restrained from trespassing or interfering with the property and use thereof of the defendant herein upon which the aforesaid easement is located." On first reading there does appear to be an inconsistency in the stipulation and in the judgment. But a more careful examination discloses that the judgment enjoins plaintiff fom trespassing or interfering with the property of the defendant upon which the easement is located; it is referring to that part of Lots A and B on which the easement is not located. The judgment may not be artfully worded, but we do not believe it is inconsistent with the intent and purpose of the stipulation.
It is our conclusion that this motion should not be sustained.
Plaintiff has filed a motion to transfer this cause to the Supreme Court because the title to real estate is involved. Art. V, Sec. 3, 1945 Const., Mo.R.S.A. The title to real estate is not directly involved in this suit. The mere fact that the judgment, if and when carried into execution, will affect land is not sufficient to give the Supreme Court jurisdiction. The title must be directly involved in the suit itself, and be a matter about which there is a contest. Nettleton Bank v. McGauhey's Estate, 318 Mo. 948, 2 S.W.2d 771; Hunter v. Hunter, 355 Mo. 599, 197 S.W.2d 299. The motion to transfer is denied.
The order overruling the defendant's motion is sustained.
All concur.