source: Caselaw Access Project

author: GRAVES, J. —

license: Public Domain

text:
    THE STATE ex rel. JANE C. POTTER et al. v. HENRY C. RILEY, Judge.
    In Banc,
    May 1, 1909.
    1. SETTING ASIDE JUDGMENT: For Irregularities. Section 795, Revised Statutes 1899, permitting the setting aside of a judgment for irregularities upon a motion filed within three years after the termination of the term at which the judgment was rendered, contemplates a motion based upon an irregularity which is patent of record, and not one depending upon proof dehors the record.
    *2. -: Defect Not Patent: Writ of Error Coram Nobis. If the death of the plaintiff, after the interlocutory decree and before dismissal, is not apparent of record, and proof of his death must be shown by evidence aliunde, the remedy, to have the order of dismissal set aside, is the writ of error coraon nohis, the office of which is to bring the attention of the court to, and obtain relief from, errors of fact, such as the death of either party pending the suit and before judgment therein.
    3. -: Writ of Error Corám Nobis: Limitations. No statute of limitations applies to the writ of error coram nohis.

    4. -: -: Proper Parties. A writ of error coraon nohis can be procured only by one who is a party or privy to the record, or injured thereby. The heirs of the deceased plaintiff, in the cause dismissed after his death, upon motion of his attorney, and after an interlocutory decree and before final judgment, are the proper parties to bring the writ of error ooram nohis to set aside the order of dismissal and reinstate the cause.
    ■5. -: Death Pending Suit: Collateral Attack. If the validity of the judgment of dismissal is dependent solely upon the one question of the death of the plaintiff pending the suit, then such judgment is only voidable and not void, and cannot be attacked or impugned in a collateral proceeding, such as a writ of mandamus to compel the trial court to set aside the judgment of dismissal-and reinstate the cause.
    fi. -: Order of Dismissal: After Final Judgment: Void. If there was a final judgment in the cause, then an order of dismissal cannot properly be entered and if entered at a later term it is coram non judice.

      7. -:-: -: Appointment of Referee: Voidable. Where “the issues of the original suit -were finally submitted”' to the trial judge and a decree was rendered and entered of record in favor of plaintiff determining that he was the owner of the said real estate and that certain deeds given by plaintiff to defendant were in fact mortgages, and by consent of all parties the court appointed a referee “to determine the value of certain improvements erected on said lands” by plaintiff and “to take an accounting to ascertain the state of accounts between the parties in reference to the subject-matter of the suit,” and thereafter the referee took evidence, and made his report, to which defendant filed exceptions, and thereafter plaintiff died, and his attorney after his death and before said exceptions were heard dismissed the suit, there was no final judgment in the case. The preliminary decree, settling the equities and appointing the referee, contemplated that he would make a report, finding facts and issues, subject to exceptions, and subject to the approval of the court, and such a decree is not a final judgment. And the judgment of dismissal was not void, unless the cause had already been submitted to the court within the meaning of the statute.
    8. -:-: After Submission. If the whole case is under submission, an order of dismissal is void, under Sec. 639, R. S. 1899.
    9.-: -: -: No Hearing on Referee’s Report. Where there is nothing to show that there had been any hearing upon the referee’s report and exceptions thereto filed, the whole cause was not submitted within the meaning of the statute, and the order of dismissal is not void.
    10. -: Dismissal: Voidable: Appeal: Mandamus. Where the judgment of dismissal was only, voidable and not void, the original plaintiff or his privies have the right to file their motion to vacate for error of fact, which motion takes the place of the writ of error coram, nobis at common law where the defect is not apparent of record, and if that motion is overruled they are entitled to an appeal; and the order of dismissal being void neither (1) because there was no final judgment in the original cause nor (2) because there had not been a submission of the whole case, the movants are not entitled to the writ of mandamus to compel the trial court to sustain their motion and reinstate the case, for that is a collateral attack on a voidable judgment; but they are entitled to an appeal from the judgment overruling their motion, for that judgment is final and the motion is a direct attack upon the order of dismissal.
    11. MANDAMUS: Facts Admitted By Return. All undenied allegations found in the alternative writ in mandamus stand as admitted. All matters well pleaded by relators which are not denied by respondent in express terms are admitted to be true.

      Mandamus.
    PEREMPTORY WRIT DENIED.

      Fordyce, Holliday & White for relators.
    (1) 1. L. D. Grove’s authority as attorney for James M. Potter being totally dissolved by Potter’s death, Grove had no authority to move for a dismissal. Railroad v. Woodson, 110 Mo. App. 208; Prior v. Kiso, 96 Mo. 303; Jndson v. Love, 35 Cal. 463; Risley v. Pel-lows, 10 Ill. 531; Gleason v. Dodd, 4 Mete. (Mass.) 333; Weeks on Attorneys at Law (2 Ed. 1892), sees. 248, 256. 2. There had been no administration on Potter’s estate, hence Grove had no authority to appear for Potter’s personal representative. Prior v. Kiso, 96 Mo. 303; Weeks on Attorneys at Law (2 Ed. 1892), sec. 256. 3. Relators gave Grove no authority to appear for them, and the attorney of the ancestor does not become the attorney for the heirs without a new appointment. Putman v. Van Burén, 7 How. Pr. 31; Weeks on Attorneys at Law (2 Ed. 1892), sec. 256. 4. After the death of Potter, no steps should have been taken in the case until Potter’s death had been properly suggested and the case revived. Any steps taken after Potter’s death and before the legal suggestion thereof are nullities. R. S. 1899, sec. 756; Sargeant v. Rowsey, 89 Mo. 617; Railroad v. Woodson, 1Í0 Mo. App. 208; Judson v. Love, 35 Cal. 463. 5. The dismissal ordered after the death of Potter and the consequent revocation of the authority of Potter’s attorney is ineffectual and void as to relator’s rights; there was no party before the court as to the interest of relators in the lands in controversy, and no one authorized to represent their interests. The title to the land had descended to the rela-tors instantly on Potter’s death intestate, and no notice to come in had been given to the heirs.. Voorhis v. Gamble, 6 Mo. App. 1; Sargeant v. Rowsey, 89 Mo. 622; Rentschler v. Jamison, 6 Mo. App. 135; Weller v. Easton, 81 Mo. App. 660; Ilinkel y. Kerr, 148 Mo-. 48; Jndson v. Love, 35 Cal. 463. 6. Even if it were possible to conceive that Grove bad antbority to dismiss tbe case, respondent bad no antbority or right to do so. Respondent, in making bis order of dismissal violated a mandatory statute, Sec. 639, R. S. 1899,, wbicb was at that time (1896) in force as Sec. 2084, R. S. 1889, wbicb provides that after a case bas been finally submitted tbe court cannot allow it to be dismissed. 7. A suit cannot be dismissed after a final decree bas been rendered and after tbe term at wbicb tbe final decree was rendered bas elapsed, even witb consent of tbe parties, as sncb decision creates and fixes new rights and interests in tbe subject-matter of tbe controversy, and an attempted dismissal is coram non judice and void. Warren v. Manwarring, 173 Mo. 21; Lanforth v. Love, 53 Mo. 217; Mobler v. Wiltberger, 74 Ill. 163; Long v. Tbwing, 9 Ind. 179; Lasbley v. Hogg, 11 Yesey, Jr. 602.; Clarkson v. Scrogins, 2 T. B. Monroe (Ky.) 52; Egg v. Levey, ,11 Beavan 221. There can be but one final judgment . in a case. If tbe court bas rendered a final judgment at one term, another final judgment rendered at any subsequent term is void. Warren v. Manwarring,. 173 Mo. 21. 8. It is now tbe plain duty of tbe respondent to rescind its void order of dismissal and to redocket and proceed witb tbe case according to law and justice, so that, plaintiff’s death, wbicb occurred prior to said dismissal and subsequent to a final submission, final judgment and tbe expiration of tbe term of court of said final judgment, may be properly suggested, tbe cause revived and exceptions-filed to tbe report of tbe referee in said case passed upon, and tbe relators’ rights in tbe matters in controversy set at rest. State ex rel. v. Nabor’s Heirs, 7 Ala. 459; Ex parte Swan, 23 Ala. 192. (2) Mandamus lies to compel a court to reinstate and proceed witb a cause properly before it, wbicb it bas improperly dismissed or dropped from its docket. Miller y. Richardson, 1 Mo. 310; Astor v. Chambers,. 1 Mo. 191; State ex rel. v. O’Brien, 102 Mo. 254; State ex rel. v. Cape G-irardean Court, 73 Mo. 560; State ex rel. v. Neville, 157 Mo. 386; State ex rel. v. Laughlin, 75 Mo. 358; State ex rel. v. Dearing, 173 Mo. 492; State ex rel. v. Klein, 140 Mo. 502; .Costello v. St. Lonis Circuit Court, 28 Mo. 259; Austin v. Probate Court, 35 Mo. 198; State ex rel. v. Renick, 157 Mo. 292; State ex rel. v. Gideon, 119 Mo. 94;.State ex rel. v. Smith, 172 Mo. 446;'State ex rel. v. Smith, 172 Mo. 618; State ex rel. v. McCracken, 60 .Mo. App. 650; Insurance Co. v. Comstock, 16 Wall. (U. S.) 258; Ex parte Bradstreet, 7 Peters (U. S.) 634; People ex rel. v. Judge Circuit Court, 27 Mich. 303; People ex rel. v. Judge Circuit Court, 30 Mich. 98; Weeks v. Circuit Judges, 73 Mich. 256; High, Extra. Rem. (3 Ed.), secs. 250, 256, 258. 1. It was the ministerial and statutory duty of respondent not to allow the case in Mississippi county to be dismissed after it had been tfinally submitted. Respondent had no discretion. R. S. 1899, sec. 639; R. S. 1889, see. 2084; State ex rel. v. McCracken, 60 Mo. App. 650; State ex rel. v. Reynolds, 121 Mo. App. 699; State ex rel. v. Meier, 143 Mo. 439. 2. Neither appeal nor writ of error would lie from a voluntary dismissal or a motion to set aside a voluntary dismissal. Koger v. Kays, 57 Mo. 329. 3. Neither appeal nor writ of error lies from a refusal to proceed with a case or from an order dropping the case from the docket; mandamus is the proper remedy. Miller v. Richardson, 1 Mo. 310; Astor v. Chambers, 1 Mo.' 191; State ex rel. v. O’Bryan, 102 Mo. 254; State ex rel. v. Smith, 172 Mo. 446; State ex rel. v. Smith, 172 Mo. 618. 4. Where the remedy by appeal or writ of error lies, but is not as adequate or as speedy as mandamus, ( mandamus will lie. State ex rel. v. Reynolds," 121 Mo. App. 699; State ex rel. v. O’Bryan, 102 Mo. 254; State ex rel. v. Osborne, 24 Mo. App. 309; State ex rel. v. Lafayette Co., 41 Mo. 221; State ex rel. v. Johnson, 103 Wis. •591; State ex rel. v. Clayton, 34 Mo. App. 563. 5. The remedies of appeal and writ of error wonld be too slow and totally inadequate in this case. Remedies to be adequate “must reach the end intended and actually compel the performance of the duty refused.” State ex rel. v. McCracken, 60 Mo. App. 650; State ex rel. v. Renick, 157 Mo. 292.

      Lew R. Thomason for respondent.
    The circuit court of Mississippi county, having jurisdiction of the subject-matter of the suit in the case of James M. Potter vs. Thomas Bullivant and others, and having acquired jurisdiction of the persons of the parties thereto, its judgment of dismissal, •although rendered after the death of Potter, the plaintiff, is not void or subject to collateral attack; it is voidable only, and can only be set aside in an appropriate proceeding, and is valid until set aside. Black on Judgments, sec. 200; Shea v. Shea, 154 Mo. •599; Hinkle v. Kerr, 148 Mo. 43; Coleman v. Mc-Anulty, 16 Mo. 193.- The judgment of dismissal not being void, but only irregular* cannot be set aside upon a motion filed eleven years after its rendition. R. S. 1899, sec. 795; Jamison v. Kinsey, 85 Mo. App. 301; Craig v. Smith, 65 Mo. 536; Downing v. Still, Adrar., 43 Mo. 316; Burgess v. Hitt, 21 Mo. App. 315; Clowser v. Noland, 72 Mo. App. 217. While a void .judgment may be assailed collaterally, this rule does not extend to judgments which are erroneous, and voidable only. In such cases the aggrieved party must ■seek his remedy by appeal, or in some other appropriate proceeding to correct the alleged error. Freeman v. Thompson, 53 Mo. 183; McNair v. Biddle, 8 Mo. 257; Van Fleet Collateral Attack, secs. 602-3. Mandamus will not lie to control the discretion of a tribunal acting judicially. State ex rel. v. Fiad, 108 Mo. 620; State ex rel. v. Port, 160 Mo. 97; State ex rel. v. McAuliff, 48 Mo. 112; State ex rel. v. Wilson, 49 Mo. 146; State ex rel. v. MeGown, 89 Mo. 156; State ex rel. v. Smith, 105 Mo. 6; High on Extra. Remedies, secs. 147-157. Mandamus will lie, only, where the party complaining has a clear legal or equitable right and has no other specific remedy; it will not lie to correct the alleged errors of the trial court; this can be done only upon appeal or writ of error as the case may require. State ex rel. v. Field, 107 Mo. 450; State ex rel. v. Mossman, 112 Mo. App. 540; Martin v. Martin, 27 Mo. 225; Dunklin Co. ex rel. v. Dist. Court, 23 Mo. 449; State ex rel. y. Ingleman, 86 Mo. 551; State ex rel. v. St. Louis Court, 87 Mo. 374; Costello v. St. Louis Circuit Court. 28 Mo. 259; Ex parte De Groot, 6 Wall. 497.
   GRAVES, J. —

This is an original proceeding in this court by which relators seek by mandamus to compel Hon. Henry C. Riley, Judge of the Circuit Court of Mississippi county, to set aside an order of dismissal heretofore entered by him in said court in a cause then pending wherein James M. Potter was plaintiff and Thomas Bullivant et al., were defendants, and to reinstate the cause, and to proceed with said cause and to hear and determine the same.

This court issued its alternative writ of mandamus, the allegations of which are, in substance, as follows: That relators and one Francis J. Bullivant, son of Thomas Bullivant, are the only heirs at law of dames M. Potter, deceased, who died January 5, 1896; that relators are all non-residents of Missouri, but said Francis J. Bullivant is a resident 'of Missouri; that two of relators (naming them) are minors and appear by their next friend, Samuel W. Fordyce; that at the time of his death, James M. Potter was the owner of certain real estate in Butler county, Missouri; that in September, 1890', said James M. Potter instituted in the circuit court of Butler county an equitable action against Thomas Bullivant, Stephen M. Chapman and others to determine their respective rights and interests in and to said real estate; that a change of venue in said cause was granted to the circuit court of Mississippi county; that said cause was dismissed as to all defendants except Bullivant and Chapman; that on October 12, 1892, said cause was finally submitted upon the pleadings and evidence in the said circuit court over which respondent, Henry C. Riley, presided as the regular judge thereof; that the court made and entered of record a decree determining that the said James M. Potter was the owner of said real estate and that certain deeds given by said James M. Potter to Thomas Bullivant were in fact mortgages, and by consent of all parties to the cause appointed J. Perry Johnson as a referee to determine the value of certain improvements in said land erected by Bullivant, and to take an accounting between the parties; that said decree was final and no appeal was taken therefrom; that the referee made and filed his report, to which Bullivant and Chapman filed exceptions; that before said exceptions were passed upon by the court, the said Potter died on the date aforesaid; that on April 7, 1896, the death of James M. Potter not having been suggested to the court in said cause, on the motion of L. D. Grove, who had been the attorney of record for said Potter, the respondent, as judge of said court, wrongfully and unlawfully entered an order or judgment of dismissal in said cause; that James .M. Potter died intestate and no administration had been had upon his estate and all his real estate has descended to relators and Francis J. Bul-livant; that on October 8, 1907, relators filed their written motion in said cause and in said court, requesting said court to set aside said order of dismissal and reinstate said cause; that respondent wrongfully overruled said motion and refused to reinstate said cause; that respondent at all said times was and is now the judge of said court; that in making said order of dismissal respondent violated section 639, Revised Statutes 1899; that said cause had been finally submitted to respondent and he had no legal right to dismiss the same; that said dismissal was after a final decree and judgment had been entered in the said cause, and after the term had expired at which said decree was entered, contrary to the laws of this State; that the respondent had no right to dismiss the cause upon the motion and suggestion of L. D. Grove, because his authority to act terminated with the death of Potter; that the respondent at the time individually knew of the death of Potter; that the death of Potter had been suggested in another case pending in respondent’s court on the same day that the order of dismissal was made; that it is the legal and ministerial duty of respondent to set aside such order and judgment of dismissal and reinstate said cause; that said Stephen M. Chapman has recently instituted suit against relators in. Butler county, in which he seeks to quiet title in Mm to the lands involved in the Potter suit aforesaid; that, Francis J. Bullivant has refused to join relators herein, although requested so to do; that relators will be unable to present all the facts as to the title to this land, if called upon to defend the suit in Butler county last above stated, owing to the fact that many of the witnesses have since died, and the notes of their testimony in the Potter case have been lost or destroyed; that relators have used due diligence in attempting to enforce their rights (here following is a statement of the distant residence of relators, alleging some to be in Nova Scotia, others in Canada, and that two are minors); that they, the relators, have no adequate remedy at law. This is followed by a prayer for our writ of mandamus.

Such are tbe facts recited in tbe alternative writ.

By way of return tbe respondent says: that be admits that be is judge of tbe circuit court of Mississippi county; admits making tbe order of dismissal; that be denies having any knowledge of tbe death of Potter, either individually or otherwise; that said order was made on tbe application of L. D. Grove, an attorney at law, who was attorney of record for Potter, who, at tbe time, represented be was attorney for Potter; that said order so made is not void, nor subject to collateral attack, nor tó be set aside upon motion unless motion be made within three years. Tbe return then proceeds in this language:

“Respondent further says that on heretofore tbe -day of April, 1906, and at tbe regular April term of tbe circuit court of Mississippi county, Missouri, one Francis J. Bullivant, as an heir at law of tbe said James M. Potter,'presented to tbe court bis mo; tion to set aside .the order of dismissal made and entered in tbe cause wherein said James M. Potter was plaintiff, and Thomas Bullivant and others defendants; that upon tbe presentation of said motion it was stipulated and agreed by tbe parties thereto, that tbe said James M. Potter was dead at tbe time said judgment and order of dismissal was entered; that upon tbe bearing- of said motion it was further shown to tbe court, by tbe introduction in evidence of certified copies of tbe land records of Butler county, Missouri, tbe situs of tbe lands in controversy in said suit, that tbe said James M. Potter, tbe plaintiff in said cause, bad, by bis general warranty deed dated January 3, 1896, and which said deed is duly recorded in Book No. 53 at page 141, tbe same being one of tbe land records of Butler county, Missouri, conveyed to Jane 0. Potter one of tbe relators herein said lands. That it was further shown to tbe court that the said Jane C. Potter had, by her quitclaim deed, dated the 19th day of April, 1901, and recorded in Book No. 49 at page 488, the same being one of the land records of Butler county, Missouri, conveyed all her right, title and interest in and to said lands to parties other than the relators herein or either of them.
“Respondent further says that upon the hearing of the motion of the relators to set aside the judgment and order of dismissal and reinstate the cause of James M. Potter versus Thomas Bullivant and others, it was not shown to the court that the relators or either of them had acquired any right, title or interest in the lands in controversy in said suit.
“Respondent further says that from the order and judgment of the court in overruling relators’ said motion, the relators have an adequate remedy by appeal.
“All of which is respectfully submitted.”

To this return, relators filed their plea, in substance as follows: They deny that L. D. Grove represented to respondent that he was attorney - for James M. Potter, when the order of dismissal was made; they aver that it is mandatory upon respondent to reinstate and .redocket the cause; they aver that section 795, referred to, but not specifically named in respondent’s return, is not applicable to this case; they deny that upon the hearing of the motion of Francis J. Bullivant, any deeds or certified copies thereof were introduced showing that James M. Potter had conveyed to parties other than relators; they aver that the alleged deed from James M. Potter to Jane C. Potter, who is one of the relators herein, was notoriously fraudulent and void and was never in fact executed and that at the time it was claimed that it was executed, the said James M. Potter was in extremis and was in an unconscious and comatose condition, and because the said alleged instrument does not des.cribe the lands with such particularity as to convey the same. They further say that at the hearing of their motion on October 8, 1907, it was stipulated that James M. Potter died December 30, 1895, and that relators and Francis J. Bullivant were his heirs at law; relators further say that at the hearing of said motion it would have been shown by evidence that Potter died intestate, and that the deeds above mentioned were void, and the relators and Francis J. Bullivant were the heirs at law of Potter, but the respondent informed the attorneys of the re-lators at the time that the matters involved were well known to him, as he was judge in the former proceedings, and he did not care to go into them, and thereupon overruled relators’ motion as aforesaid; rela-tors further aver that at the time there was on file and of record a stipulation in said cause showing the death of Potter on December 30, 1895, and showing that relators and Francis J. Bullivant were his heirs at law, and that they have no adequate remedy by appeal. The pleading then concludes with a prayer for the remedies asked in the alternative writ.

To this pleading, respondent filed no replication.

This court appointed Hon. Arthur L. Oliver as a commissioner to take the testimony in the cause and report the same, together with his finding of facts, to this court. Such has been done and the findings so found by the commissioner are as follows:

“First. I find that the relators, Jane C. Potter, Dexter D. E. Potter, Mary 0. Nasmith, Eliza Buchner, Edith Potter, a minor, and Eobert Potter, a minor, together with one Francis J. Bullivant (who is not a party to this suit) and were at the time of filing of relators’ petition for mandamus, the sole and surviving heirs, as children and grandchildren of one James M. Potter. That the said James M. Potter died intestate on or about the 30th day of December, 1895. That the respondent, Henry C. Eiley, is and was at all times mentioned in relator’s petition the dnly elected, qualified and acting judge of the circuit court of Mississippi county, Missouri.
“Second. I find that prior to the death of the said James M. Potter, during the month of September, 1890, he, the said James M. Potter, instituted a suit in equity, against one Thomas Bullivant, Stephen M. Chapman, Charles F. Hendricks, Byrd Duncan, Patrick Harmon, and ¥m. F. Neal, defendants, in the circuit court of Butler county, wherein it was sought by the plaintiff Potter to have certain alleged encumbrances set aside, which had theretofore been given by him on his lands located in Butler county, Missouri, or to have the status of these encumbrances determined by the court. That this original suit was transferred by change of venue to the circuit court of Mississippi county, Missouri, where the cause of action was there dismissed as to all defendants except Thomas J. Bullivant and Stephen M. Chapman. That in October, 1892, the issues of this original suit were finally submitted to the respondent, H. C. Riley, as Judge of the Circuit Court of Mississippi County, aforesaid, and a judgment (which was not offered in the hearing before me) was by him rendered in favor of the plaintiff, James M. Potter. That thereupon one J. Perry Johnson was appointed as referee to ascertain and determine the value of certain improvements on the lands then in litigation, and that said referee thereafter filed his report, to which the. defendants, Bullivant and Chapman, filed their exceptions.
“Third. I further find that thereafter, while the exceptions to the referee’s report of defendants Bul-livant and Chapman were pending in said circuit court of Mississippi county, and before they were ruled upon by the respondent, H. C. Riley, one L. D. G-rove, who I find was acting as the attorney of James M. Potter in his lifetime, appeared as Potter’s attorney, on the 7tla day of April, 1896, and had the following order made on record:
“ ‘James M. Potter, plaintiff, vs. Thomas Bulli-vant et ah, defendants.
“ ‘Prom Butler connty.
“ ‘Now comes the plaintiff, by attorney, and on motion this cause is dismissed.
“ ‘It is therefore considered and adjudged by the court that the defendants recover of ■ and from the plaintiff the costs and charges herein expended and that execution issue therefor. ’
“I find that at the time the above order was made, James M. Potter, the plaintiff, had then been dead about three months, but the evidence fails to show that any evidence of death was ever made known to the court, at or prior to that time, or that the court of its own knowledge knew of Potter’s death. The evidence does show that on the same day in another and different suit wherein James M. Potter was defendant, his death was suggested and not denied, and one Jane Potter was made party defendant.
“Fourth. Tour commissioner further finds that thereafter, to-wit, on the 8th day of October, 1907, the relators herein by their attorneys, filed a motion in the circuit court of Mississippi county, wherein they sought to have the court set aside the order of dismissal made in the case of James M. Potter vs. Thomas J. Bullivant et al., on the 7th day of April, 1896, and that said motion was by the respondent, H. O. Riley, overruled. That at the time of the submission of this motion, on October 8, 1907, it was stipulated and admitted by the parties in said motion, and offered before the respondent H. 0. Riley, in support of said motion, the following:
“ ‘First: That James M. Potter, the plaintiff in the above entitled suit, died on or about the 30th day of December, 1895, and before the order of dismissal was made in said suit.
“ ‘Second: That Eliza Buchner, Mary G-. Na-smith, Jane C. Potter, Dexter D. E. Potter, Edith Potter, and Robert Potter, together with Francis J. Bullivant, are interested as heirs at law of James M. Potter, deceased, who was formerly the plaintiff in the above styled suit.’
“I further find that at the time of the submission of relators’ motion in October, 1907, there was no evidence introduced on the hearing of said motion in the circuit court of Mississippi county, Missouri, and before the respondent, showing that James M. Potter had prior to his death conveyed the lands in controversy. But that on another and different motion filed by one Francis J. Bullivant (who is not a party to this suit) on April, 1905, and passed upon by the respondent on the 5th day of October, 1906, defendants in that motion offered at sometime in vacation certain exhibits to the respondent, in support of their contention that said James M. Potter had conveyed said lands in controversy.”

Such are the facts pleaded and the facts proven in this record.

I. In respondent’s brief we are cited to section 795, Revised Statutes 1899', as being of force and vitality in this cause. This section permits the setting aside of judgments for irregularities upon motions filed within three years after the terms of their rendition. This motion was filed long after the expiration of the time prescribed by this statute, and as we take it was not intended to be a motion under this section of the statute. A motion contemplated by this statute must be one based upon an irregularity which is patent on the record, and not one depending upon proof dehors the record. [Phillips v. Evans, 64 Mo. l. c. 22; Latshaw v. McNees, 50 Mo. l. c. 384; Powell v. Gott, 13 Mo. l. c. 461.]

The motion in question is more in the nature of a writ of error coram nobis, the very purpose of which is to make apparent to the court by evidence dehors the record some error of fact which did not appear of record and which was unknown to the court. In fact, if the death does not appear of record but must be shown by evidence aliunde, the writ of error coram nobis is the remedy. In this State a motion to vacate the judgment charging the fact of death and supported by proof takes the place of the common law writ of error coram nobis. The general rule as to the remedy is thus stated in 11 Ency. Plead, and Prac., 847: “If, however, the fact of death must be shown dehors the record the remedy is the writ of error coram nobis.” [Powell v. Gott, 13 Mo. l. c. 461; 5 Ency. Plead, and Prac., 26-27; Dugan v. Scott, 37 Mo. App. l. c. 669; Craig v. Smith, 65 Mo. 536.]

In the case of Craig v. Smith, supra, there was both a patent error of record, i. e., the sheriff’s return, which showed a non est as to the moving defendant, and an error of fact, in this, that the attorneys representing two of the defendants (there being three including the movant) had filed an answer for defendants without specifying for which defendants the answer was intended, when they had no authority to appear for but two and not for the party filing the motion to vacate the judgment. The motion was filed within three years, and this court treated it both as a motion in the nature of a writ of error coram nobis and as a motion under the statute, now section 795, Revised Statutes 1899.

In 5 Ency. Plead, and Prac., 26-27, the office of the writ is thus described and defined: “The office of the writ of coram nobis is to bring the attention of the court to, and obtain relief from, errors of fact, such as the death of either party pending the suit and before judgment therein; or infancy, where the party was not properly represented by guardian, or cover-ture, where the common law disability still exists, or insanity, it seems, at the time of the trial; or a valid defense existing in the facts of the case, but which, without negligence on the part of the defendant, was not made, either through duress- or fraud or excusable mistake; these facts not appearing on the face of the record, and being such as, if known in season, would have prevented the rendition and entry of the judgment questioned. ’ ’

In Powell v. Gott, supra, we said: “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 coram nobis. The object of this motion is to correct an error in fact, upon which certain proceedings in law have been based.”

And in this State it has been held that no Statute of Limitations applies to such proceeding. [Powell v. Gott, 13 Mo. 458; Latshaw v. McNees, 50 Mo. l. c. 384.]

In the latter case it is said: “As this error does not appear upon the face of the pleadings, it can only be brought to the attention of the court by a proceeding in the nature of a writ of error coram nobis. The usual way is by motion supported by affidavits or evidence. If the motion is sustained the husband and wife are allowed to make any defense to the merits they may have, and the case is retried. This motion is allowed at any subsequent term after final judgment. I know of no Statute of Limitations against such a motion. The Statute of Limitations in regard to irregularities applies to such as appear on the face of the proceedings, and not to such as are brought before court by evidence aliunde, as in this case. [See Powell v. Gott, 13 Mo. 458; Ex parte Toney, 11 Mo. 661; Groner v. Smith, 49 Mo. 318; Ex parte Page, Id. 291.]”

The relators herein are proper parties to file snch a motion in the original case. They are the heirs at law of Potter and are injured by the judgment. They are privies to the record as- such heirs of Potter. In 5 Ency. Plead, and Prac., 31, this rule is announced: “A writ of error coram nobis can only be procured by one who is a party, or privy to the record, or injured thereby.”

See also Holford v. Alexander, Assignee, 12 Ala. l. c. 289, wherein, on a discussion of who can sue out such a writ, it was said: <£It is laid down in the elementary boohs that a writ of error can be brought by him only who was a party or privy to the record, or injured by the judgment, and who consequently will derive advantage from its reversal. Heirs, executors, administrators, reversioners, remaindermen, terre tenants, or a husband who marries after a judgment against his wife, and perhaps others, who are not parties to the proceeding sought to be revised, may join in the prosecution of a writ of error.” Numerous cases are cited by the court in support of this point.

II. Respondent contends, among other things, that the judgment of dismissal was voidable 'only and not void, and being only voidable it cannot be attached in this, a collateral proceeding, as he terms the case in hand.

That the death of Potter terminated the relationship of Grove and Potter as attorney and client cannot be questioned. [Weeks on Attorneys at Law, secs. 248 and 256.] That the judgment of dismissal was on the motion of Grove is a fact found and undisputed.

But the immediate question before us is, does the death of a party to a suit, after being duly under the jurisdiction of the court, both as to person and subject-matter, make an adverse ruling to him void,, or does it render such judgment only voidable? The cases are not uniform upon the question, but the weight of authority is to the effect that such a judgment is voidable only. In Black on Judgments, sec. 200, it is said: “The great preponderance of authority is to the effect that, where the court has acquired jurisdiction of the subject-matter and the persons during the lifetime of a party, a judgment rendered against him after his death is, although erroneous and liable to be set aside, not void nor open to collateral attack/ ’

The author has collated a number of authorities, and among them the old case of Coleman v. McAnulty, 16 Mo. 173. In this case,, our court, speaking through Scott, J., said: “In the ease of Warder v. Tainter, 4 Watts 278, the court says the authorities are abundant to show that in no case is a judgment rendered by a court of general jurisdiction considered void on account of the death of the defendant having taken place before the rendition of it; that, at most, it is only voidable. If the death of the defendant will not render a judgment void, no reason is perceived why the death of the plaintiff should have that effect. There being, then, a valid sale under a writ, supported by a judgment not void, the title of Coleman passed by it.”

Vanfleet, in his work on Collateral Attack on Judicial Proceedings, sec. 602, undertakes to give the reason for the rule thus: “Jurisdiction over the parties being shown by the record, any movement for or against them is an implied finding that they are in life and legally competent to protect their rights. The recital usually is that the parties, either in person or by attorney, are present, or neglect, after due notice, to be present. Those are matters to be determined from the evidence; and the determination is not void because the evidence was false or insufficient.”

The case of Coleman v. McAnulty, supra, has been cited and approved upon tbis question in the following cases: Fithian v. Monks, 43 Mo. l. c. 521; Bank v. McWharters, 52 Mo. l. c. 35; Lewis v. Coombs, 60 Mo. l. c. 48; Posthlewaite v. Ghiselin, 97 Mo. l. c. 425.

Our cases are not wholly uniform on the subject. In Sargeant v. Rowsey, 89 Mo. 617, Sherwood, J., holds that where a defendant in an action to foreclose a mortgage dies during the pendency of the suit and a decree is entered without suggestion of death and the bringing in of the heirs, a sale under such decree carried no title and is a nullity.

The Missouri cases seem to agree that if at the institution of the suit the defendant was in fact dead, then the judgment was a nullity. But on the other .hand the Sargeant case, supra, seems to stand alone, in the list of cases wherein the court had acquired jurisdiction of the person and the subject-matter prior to the death. It is true that in the case of Hinkle v. Kerr, 148 Mo. 43, Brace, P. J., touches the questions, and the distinction between the two classes of cases, i. e., those cases wherein the party was dead at the institution of the suit, and those cases wherein the party was alive and duly served with process at the institution of the suit, but dies pending the action and before final judgment, somewhat tenderly and suspiciously and in a degree doubtingly, yet the case finally passed off on the question that the party was a woman under coverture.

However, GaNTt, P. J., in the case of Shea v. Shea, 154 Mo. l. c. 606, gets back to the old mooring of the McAnulty case, supra, and summarizes the Missouri doctrine thus: “It is well settled.in this State, whatever may be the judicial opinion in other jurisdictions, that an action begun and prosecuted against a defendant who was dead when it was begun is absolutely void and can be attacked collaterally as well as directly. [Bollinger v. Chouteau, 20 Mo. 89; Williams v. Hudson, 93 Mo. 524; Crosley v. Hutton, 98 Mo. 196; Graves v. Ewart, 99 Mo. 13; Jaicks v. Sullivan, 128 Mo. 177.] But the great weight of authority in this country is that where a court has acquired jurisdiction of the subject-matter and of the person, the death of the defendant before the judgment is rendered, will not render the judgment void for that reason. [Yaple v. Titus, 41 Pa. St. 195; Warder v. Tainter, 4 Watts 279; Collins v. Mitchell, 5 Pla. 364; Freeman on Judgments (4 Ed.), sec. 140.] ”

So, too, says Black, J., in Williams v. Hudson, 93 Mo. l. c. 528: “As the representatives of Bougher and Crapster were not made defendants in the tax suit, and as Bougher and Crapster were dead when that suit was commenced, the judgment, as to them and their representatives, is void. Had they died after suit commenced and service of process upon them, another question would he presented; hut a suit commenced and prosecuted against a dead man gives the court no authority to enter judgment against him; the judgment is void as to him.”

The learned annotator of L. R. A., in vol. 49, l. c. 160, in commenting on the case of Eager v. Vickery (Kansas case), which holds the judgment void: says: “The majority of cases hold that a judgment taken against a party who dies after suit, hut before judgment, is not void. These cases generally hold that such judgments cannot he attacked collaterally; that they are erroneous and voidable, and that they are open to an attack in the proper manner, by motion or by writ of error cor ami nobis, etc.” To like effect is Freeman on Judgments. [1 Freeman on Judgments, sec. 153.]

From all we conclude the right rule to be, that if the party dies during the pendency of a suit wherein the court by legal process has acquired jurisdiction over both the person and the subject-matter, but before judgment, and a judgment is rendered against such, party so dying, without there being anything of record showing such death, then such judgment is voidable only and not void. But on the other hand if the party was dead at the institution of the suit, and the court for that reason acquired no jurisdiction over the person or subject-matter, then such a judgment is void.

And in the case at bar we hold that if the vitality of this judgment of dismissal is dependent solely upon the one question of the death of Potter pending the suit, such judgment cannot be attacked or impugned in this, a collateral proceeding.

' III. Relators say that they do not depend entirely upon the question that the judgment is void because Potter was dead at the rendition thereof. They in addition urge that the cause was under submission, and say that the dismissal was without authority of law and therefore void upon the face of the record itself. In other words that under the record disclosures and the law such act was nugatory and void. In this contention relators plant themselves behind Revised Statutes 1899, section 639,, which reads: “The plaintiff shall be allowed to dismiss his suit or take a nonsuit at any time before the same is finally submitted to the jury, or to the court sitting as a jury, or to the court, and not afterwards.”

' A reference to the facts found by our commissioner shows that in the original suit' of Potter v. Bullivant et al., the cause was submitted to the court who found in favor of Potter, that is to say, that the deeds in question were mortgages and not in fact deeds. Our commissioner further finds that a referee was appointed “to ascertain and determine the value of certain improvements on the lands then in litigation, and that said referee thereafter filed his report, to which the defendants, Bullivant and! Chapman, filed their exceptions.” Our commissioner then continued: “I further find that thereafter, while the exceptions to the referee’s report of defendants Biillivant and Chapman were pending in said court of Mississippi county, and before they were ruled upon by the respondent, EL C. Eiley, one L. D. G-rove, who I find was acting as the attorney of James M. Potter in-his lifetime, appeared as Potter’s attorney on the 7th day of April, 1896, and had the following order made in record” (then follows in full terms the order and judgment of dismissal and a judgment against Potter for costs.) The record before us does not disclose the fact as to whether or not these exceptions had been heard and submitted to the respondent for his decision. The only thing appearing is that such exceptions were filed, and they might have been withdrawn before being heard and determined by the court. The parties were entitled to be heard upon their exceptions and when heard they would be submitted to the court for a decision therein. The record fails to show such hearing and as a consequence the exceptions within themselves were not under submission, within the terms of the statute, supra.

But going back to the further findings of our commissioner, we see that there is a finding to the effect that in 1890 James M. Potter instituted a suit in equity against Bullivant and Chapman and others in the circuit court of Butler county, wherein it was sought by plaintiff to have certain alleged encumbrances set aside, or to have the status of the same determined by the court; that by change of venue said cause went to Mississippi county where a dismissal was taken as to all defendants except. Bullivant and Chapman. Then our commissioner in words finds and says: “That in October, 1892, the issues of this original suit were finally submitted to the respondent, H. C. Eiley, . . . and a judgment was by him rendered in favor of the plaintiff, James M. Potter. That thereupon one J. Perry Johnson was appointed as a referee to ascertain and determine the value of certain improvements on the lands in litigation, and that the said referee thereafter filed his report, to which the defendants, Bullivant and Chapman, filed their exceptions. ’ ’

If from this record of found facts there was either a final judgment in this case, or the whole case was before the court under submission, then, either of said conditions would be fatal to the contention of respondent. First, if there was a final judgment, then the order of dismissal should not have been entered and being entered at a later term was coram non judice. [Mohler v. Wiltberger, 74 Ill. 163; Long v. Thwing, 9 Ind. 179; Danforth v. Lowe, 53 Mo. 217.]

And, secondly, if the whole case was under submission and no final judgment, then the order of dismissal was in the face of an express statute, section 639, supra, and void on the face of the record.

(a). Was the judgment entered a final judgment? In determining this question in addition to the facts found we must take into consideration the undenied allegations of the alternative writ. Such undenied allegations stand as admitted. [13 Ency. Plead, and Prac., 734.] The above authority says: “All matters well pleaded by the relator which are not denied by the respondent in express terms are admitted to be true. Insufficient answers have the same effect.”

Speaking of the original suit of Potter v. Bulli-vant et al., the alternative writ says: “And on the twelfth day of October, 1892, the cause was finally submitted to the court upon the pleadings and evidence, for its determination of the issues thereby joined, and the court thereupon made and entered of record a decree determining that the said James M. Potter was the owner of the said real estate, that certain deeds given by said James M. Potter to said Thomas Bullivant were in fact mortgages, and by consent of all parties to the cause appointed a referee, one J. Perry Johnson, to determine the value of certain improvements on said lands erected by said Thomas Bullivant, and to take an accounting to ascertain the state of accounts between the parties in reference to the subject-matters of said suit.”

This allegation stands undenied by the return and is therefore admitted. This coupled with the facts found fully show the character of the judgment. Was it a final judgment? We are of opinion that the decree or judgment in the Potter case was not a final judgment. Whilst it settled the principal equities, it left other matters to be passed under review by the court, before the full equities could be adjudicated. The decree pleaded determined that the deeds were mortgages, but the petition or bill in equity not only prayed for that relief, but, as averred in the alternative writ, it further asked the chancellor to determine their respective interests in and to the said real estate. A part of this controversy was determined by the chancellor, but another part was referred to a referee. Before final decree the report of the referee must necessarily pass under the judicial review of the chancellor. The amount of the mortgagee’s interest in the lands could not be decreed until this report was made to and passed upon by the court.

In Black on Judgments, sec. 41, it is said: “The difficulty appears to arise in relation to those decrees which, while settling the general equities of the cause, leave something for future action or determination. And the true rule seems to be that, if that which remains to be done or decided will require the action or consideration of the court before the rights involved in the cause can be fully and finally disposed of, the decree is interlocutory; but it is none the less final if, after settling the equities, it leaves a necessity for some further action or direction of the court in execution of the decree as it stands.”

And in section 44 the same author says: “The most difficult cases in which to draw the line between final and interlocutory decrees, are those in which the decree, after finding the general equities, orders reference to a master for some specific purpose. Yet there are not wanting principles upon which to base a reasonable and accurate distinction in these cases. As the condensed result of the numerous authorities on the subject, we may formulate the following specific rules: First, where a decree is made disposing of the general equities of the case, but ordering a reference to a master to ascertain damages, or to find certain facts, or to do anything else necessary to be done before a final adjustment of the rights of the parties can be had, if the functions of the master are to be judicial, and not merely ministerial, and the provisions depending on his report are not already incorporated in the decree, then the decree is interlocutory and not final. Second, where a decree ascertains and fixes all the rights of the parties, but a reference is ordered to a master to do or ascertain something that is necessary to carry the decree into effect, if the functions of the master are to be merely ministerial and not judicial, or if all the consequential directions depending on the result of the proceedings before him are given in the decree itself, then the decree is' final and not interlocutory. To take a single illustration,- — -the reference of a case to a master, to take an account upon evidence, and for the examination of the parties, and to make or refuse allowances affecting the rights of the parties, and to report his results to the court, is not a final decree. For his report is subject to exceptions from either side, which must be brought to the notice of the court before it can be available. It can only be made so by the court’s overruling the exceptions, or by an order confirming the report, with a final decree for its appropriation and payment.”

The decree for our review, whilst not before us in haec verba, evidently provided for the referee to take evidence upon two questions, i. e. (1) the value of improvements placed on the lands by defendants, and (2) the amount of the mortgage debt. And further that such referee report to the court. In such case there could he no final decree until the.report of the referee and the exceptions thereto were passed upon by the court.

Again, discussing final and interlocutory decrees, 23 Cyc. 786, says: “Although there cannot be two final judgments in the same case, it is sometimes proper to enter an interlocutory judgment before the final disposition of the case. Generally speaking the judgment is final if it at once disposes of the entire controversy settling the rights of the parties, and leaving nothing for further consideration; but interlocutory if it merely settles some preliminary point or matter, or reserves for future determination some detail essential to the complete adjustment of the subject of litigation. The judgment is ordinarily final when rendered in pursuance of a general verdict, or on submission of the entire case to the court, or on a submission for decision on the pleadings. But an interlocutory judgment may be entered where it is necessary to frame an issue on which the parties- may properly go to trial, or on overruling a demurrer, where leave is given to amend the pleading or to plead over, or where the court has not before it all the papers necessary to settle the form of the final judgment, or reserves the decision of some point affecting the amount recoverable or the right to modify the judgment, or finds it necessary to appoint a master or referee to find issues in the case, unless where the action to be taken on the coming in of his report is definitely prescribed. So also a judgment is generally interlocutory if it embodies a condition, the performance of which is'necessary to make it effective, or a condition on the performance of which it may he released. And in the action of account, it is usual and proper to render a 'preliminary judgment that ‘the parties do account.’ ”

In the case at bar it was necessary to appoint a master or referee to find issues in the case, and the action to be taken on the coming in of his report was n.ot definitely prescribed by the decree under which he was appointed.

We take it that there was left a very material portion of this case to be passed upon by the court upon the coming in of the report of the referee. The judgment mentioned in the alternative writ is not a final judgment as we read and understand the cases, so that the contention of relators that no order of dismissal could be made because of a final judgment is untenable.

(b). If the judgment was not final, as we have found, then was the case under submission, so as to make section 639 applicable? We think not under the record before us. There is nothing to show that there had been any hearing upon the report and exceptions taken thereto. Had the record disclosed that there had been a hearing upon these exceptions and this report, and the chancellor nisi had taken the same as submitted to him for judgment thereon, a different case would be presented. By section 714, Revised Statutes 1899, the parties were entitled to argue their exceptions to the report of the referee. The law says: “‘and shall be argued without delay,” thus showing that a hearing is contemplated before a submission. Under the facts before us this cause had not been finally submitted to the court so as to bring it within the purview of section 639, supra.

TV. By our first paragraph we reach the conclusion that the motion filed by relators in the original suit of Potter v. Bullivant et al., was in the nature of a writ of error coram nobis, and that the relators were such privies to the record that they had a right to come in and file the same. By our second paragraph we reach the conclusion that the judgment of dismissal is not a void judgment, hut voidable only, and inasmuch as the motion to vacate was overruled it stands there as bar to further action, and cannot he questioned in a collateral proceeding. By our third paragraph we hold that the first judgment in the original case is not a final judgment, so as to preclude a dismissal of the cause, and further that the cause was not under submission so as to preclude a dismissal under the terms of section 639, supra.

Prom this it follows that the peremptory writ should be refused for two reasons, (1) because the relators had the right to file the motion to vacate, and after receiving an adverse judgment thereon had the right to appeal, and, (2) because the judgment of dismissal is only voidable, and cannot be attached in this proceeding. We cannot compel the court to proceed with the cause so long as this voidable judgment remains in force. Nor can we say that if relators had the right to file the motion to vacate the judgment, as we conclude they did have, they then did not have ample redress by way of appeal from the order or judgment overruling their motion.

In this State a motion to vacate a judgment for error of fact, and not for patent error of record, supported by evidence dehors the record, takes the place of the common law writ of error coram nobis, and is in the nature of an independent and direct attack upon the judgment in the court committing the error. A judgment upon such a motion is within itself a final judgment from which an appeal will lie.

But even if there was a question as to this, of which we think there is none, yet the judgment of dismissal and for costs in the original proceeding was a final judgment, and the order overruling the motion to vacate such judgment was at least a “special order after final judgment in the cause” so as to permit an appeal under Revised Statutes 1899, section 806.

The peremptory writ should be denied, .and it is so ordered.

All concur.


author: BURGESS, J. —

text:
    THE STATE v. JAMES C. PRITCHETT, Appellant.
    Division Two,
    May 18, 1909.
    1. NO PRELIMINARY EXAMINATION: Point Not Made During Trial: Waiver. It is not necessary that the information, . charging murder, also charge that defendant had previously been accorded a preliminary trial, nor can the point that he was. not given a preliminary hearing be raised in the motion in arrest. The point at most relates to an irregularity, and if not made before or during the trial will be considered waived.
    2. MOTION FOR NEW TRIAL: Not Filed Until After Judgment: Waiver. The motion for a new trial is required by the statute (Sec. 2689, R. S. 1899) to be filed before judgment; and where defendant has failed to so file his motion, and is informed by the court of his conviction and asked if he has any legal cause to show why judgment should not be pronounced upon him and fails to show such cause, and fails to except to the action of the court in sentencing him, he will be held to have waived his right to file a motion for a new trial; and his motion filed after judgment cannot be considered on appeal.
    3. -: No Motion: No Evidence Considered. Where there was no motion for a new trial, the appellate court cannot consider objections to the admission or rejection of evidence.
    4. ARRESTS: Deserter: Act of Congress: Constable: Warrant. A constable is authorized by the laws of this State to arrest persons charged with crime in his county, when armed with a warrant for that purpose, and without a warrant when the offense is committed in his presence; and under the Act of Congress he has authority “to summarily arrest a deserter from the military service of the United States,” without a warrant, in any county in this State, and in doing so he does not act as constable, but as the agent of the United States, so constituted by said act. As constable be could not arrest tbe deserter outside of bis county without a warrant, but as sucb agent be could.
    Appeal from Camden Circuit Court. — Ron. Argus Cox, Judge.
    Affirmed.

      Nixon, Moore, Roach & Garter for appellant.
    (1) Defendant claims that material error was committed in not giving him a preliminary examination as provided in Laws 1905, page 133. The Legislature deemed a preliminary examination of such paramount importance in capital cases that it singled out this class of criminal cases and expressly provides that no defendant shall he prosecuted by information unless he was first given a preliminary 'examination. It is written into the criminal law and it is certainly mandatory on the courts. It is a provision for the protection of the liberty of citizens and should receive a liberal interpretation by the courts. Defendant denies that this right was granted to him and claims that material error was committed by such denial. The evidence shows beyond question that defendant had no preliminary examination, and this prosecution by information was without authority of law. Criminal courts have no common-law jurisdiction in criminal cases. Their jurisdiction is conferred by statute. Adams v. Cowles, 95 Mo. 501; Hagardine v. Van Horn, 72 Mo. 370. The question of jurisdiction is one to be tried on the whole record, and where it appears that the court had no jurisdiction, the judgment will be treated as null and void. Adams v. Cowles, supra. (2) Neither under the Missouri statutes nor at common law has an officer exercising police powers the right of arrest for a misdemeanor without a warrant unless the offence is committed in his presence. W. J. Manes was the marshal of Richland, a city of the fourth class. He was chief of police of that city. The statute has expressly limited his authority. He had the right to make an arrest at all times with proper process. He had the right to make arrest without process as to all offenses committed in his presence. This was the limit of his authority. Sec. 5922, R. S. 1899. This clothed him with no power to make this arrest. Manes, as constable, had no more authority to make arrests than as a marshal. His power to make arrests was limited in the same way and to the same extent. He must have a warrant or the misdemeanor must be committed in his presence. Sec. 855, R. S. 1899. Because defendant escaped custody of Manes did not give him authority to pursue and arrest him without warrant either in Camden county or elsewhere. Sec. 2542, R. S. 1899, provides that when a defendant has been legally arrested in the first instance and escapes custody he may be immediately pursued and rearrested. This statute could not be applied to a case where the first arrest was illegal. It would be an absurdity to say that one illegal arrest would justify another. Prior to Acts of Congress approved June 18, 1898, no civil officer of any State had authority to arrest a deserter from the United States army. Kurtz v. Moffitt, 115 U. S. 458. The act of desertion was a misdemeanor under the United States laws. Section 6 of an Act of Congress approved June 18, 1898, provides: “That only civil officers having the authority under the laws of any State to arrest offenders are authorized to summarily arrest a deserter from the military service of the United States.” As a constable or city marshal of a city of the fourth class' Manes bad no authority to legally arrest an offender without a warrant except as to offences committed in their presence. The Act of Congress gave the officer, in this case, no authority to arrest defendant.

      Elliott W. Major, Attorney-General, and James T. Blair, Assistant Attorney-General, for the State.
    (1) Defendant avers that a reversal of this canse is necessitated by the fact (as he alleges) that he was not accorded a preliminary hearing. This assignment must be overruled for two reasons: 1. The record shows affirmatively that defendant formally waived a preliminary. The officer who conveyed' defendant to the jail at Lebanon is the one named in the justice’s record as delegated to make the arrest. The record of the justice was met by defendant’s affidavit, only. The trial court must be -presumed to have resolved the issue of fact against defendant, and that action of the court is not reviewable under the circumstances disclosed by this record. 2. Defendant did not make any point on the want of a preliminary hearing until by his motion in arrest. He now insists that because of the alleged want of a preliminary the trial court had no jurisdiction to try the case. This contention is fully answered by decisions of this court. State v. McKee, 212 Mo. 147; State v. Jeffries, 210 Mo. 319; Ex parte McLaughlin, 210 Mo. 663. Defendant should have presented this question, if the facts justified it, by motion to quash, and made his proof thereon. (2) The supplemental record shows that defendant did not file his motions for new trial and in arrest of judgment until after judgment. The motions were out of time, and there is nothing here for review except the record proper. Sec. 2689, R. S. 1899; State v. Rosenblatt, 185 Mo. 119; State v. Brown, 206 Mo. 507.
   BURGESS, J. —

At the August term, 1907, of the Camden Circuit Court, the defendant was convicted of murder in the second degree, under an information filed by the prosecuting attorney of said county charging him with the crime of murder, for having shot and killed with a loaded pistol one William J. Manes, in said county, on the 27th day of July, 1900. Defendant filed motions for a new trial and in arrest of judgment, which were overruled, whereupon he appealed.

The evidence shows that the defendant lived near Richland, Pulaski county, Missouri, and that about a month prior to the commission of the alleged offense he enlisted in the United States army, hut deserted therefrom some ten days later. Deceased was constable of Liberty township, and city marshal of Richland, in Pulaski county, and having learned of Pritchett’s' desertion .through a notice issued by the commanding officer at Jefferson Barracks, Missouri, he sought out the defendant and placed him under arrest, but the latter in some way not disclosed by the testimony, managed to make his escape. Three days later, July 27, 1906, the deceased discovered the defendant working with other men in what was called “the Baker field,” in Camden county, some three or four miles from Rich-land, and rearrested him. “With the defendant in his custody, the deceased started towards Richland, and it is not shown that the defendant offered any resistance until a point was reached just inside the Camden county line, about a quarter of a mile from Richland, when the defendant suddenly knocked the deceased down and jumped upon him. The struggle was observed by a girl, Cora Newberry, who was passing by, on her way home from Richland. She testified that the deceased appealed to her for assistance, stating that Pritchett was going to kill him, and she replied that she was afraid, whereupon the deceased said, “Get somebody to come, then; this boy is going to kill me.” She saw that the defendant was endeavoring to secure the officer’s revolver, which the latter fought to prevent, meanwhile pleading with the defendant not to kill him. The defendant knocked the officer down and fell on top of him, and the struggle for possession of the revolver continued. Finally the defendant wrenched the weapon from the grasp of the officer, and the fatal shot was fired. The ball, according to tbe evidence, passed entirely through tbe officer’s bead, tbe wound' proving instantly fatal. Cora Newberry did not see tbe revolver at tbe time tbe shot was fired, as tbe defendant’s back was towards ber at tbe time, but immediately after the shooting tbe defendant rose up, witb tbe revolver in bis band. Seeing tbe girl, be went np to ber and said, “ You go borne, if you don’t I will kill you. Don’t you start back to town — you go borne as quick as you can.” He then left ber and ran through tbe woods, leaving bis bat behind him.

Tbe testimony on tbe part of tbe defendant showed that when tbe deceased accosted him in the Baker field, on July 27th, be said to tbe defendant, “Von are my man,” and that tbe defendant responded, “All right;” that the deceased then handcuffed tbe defendant’s right hand to bis own left, and remarked, “If you get away from me this time, you will get away witb a dead dog tied to you.” No warrant for tbe defendant’s arrest was read or exhibited by tbe deceased at tbe time ; nor did tbe defendant object to tbe action of tbe deceased or ask by what authority be made tbe arrest. Soon after tbe shooting tbe defendant was seen by some of bis acquaintances. His clothing was torn, bis face bruised, and bis mouth bleeding, and tbe handcuff was still on bis wrist.

Testifying in bis own behalf, tbe defendant told of bis apprehension by tbe deceased, and of tbe fact that they were handcuffed together and started for Rich-land in that fashion. He testified that while on tbe way deceased made numerous threats as to what be would do if defendant attempted to escape. Tbe day was warm, and the deceased and defendant, at tbe latter’s request, stopped to rest several times. Finally the deceased refused to permit any further stop, and presenting bis pistol, threatened to kill tbe defendant if be stopped again. Defendant caught bold of tbe pistol, which be said was pointed at bis breast, and immediately a struggle ensued for the possession of the weapon, during which deceased stumbled and fell, dragging the defendant down with him. The pistol dropped to the ground, and the deceased recovered it and struck the defendant therewith in the face. Defendant again got hold of the weapon, and during the struggle for its possession it was accidentally discharged, the ball striking the deceased. While the struggle was in progress the handcuffs came apart, which enabled him to get away. Defendant denied! the truth of Miss Newberry’s testimony. He also denied that he deserted the army, and explained that he was allowed a furlough for ten days by an officer at Jefferson Barracks, but that he staid at home a few days longer than permitted. He was, however, unable to produce said furlough, which he said was in writing.

Mrs. Etta Bakewell, a witness for the defendant, testified that she saw the struggle between the defendant and deceased. She was on her way home from Richland, and left the main road, taking an old road near by which was sometimes traveled. She witnessed the struggle while standing under a post oak tree, some fifty paces distant from the combatants. The defendant, she said, shoved deceased towards the fence by the roadside; that the deceased fell, with the defendant on top of him; that she saw the deceased point his revolver at the defendant, and that as the defendant grabbed the weapon and pushed it back it went off. This witness said she saw Miss Newberry some distance away from the men, but did not hear her say anything. Mrs. Bakewell went home, but did not tell her husband- or children anything about the shooting, although her little son spoke about the killing that same night. Her reason for not speaking about it, as she testified, was that she was afraid and “didn’t want to get mixed up’’ in the affair. She didn’t testify at the coroner’s inquest and the persons to whom she first communicated her knowledge of the killing were Mr. and Mrs. Bent Clark, and this was abont a month after it occurred.

In rebuttal, the State introduced witnesses who testified that the spot at which the killing occurred could not, by reason of intervening brush, be seen from the point where Mrs. Bakewell stated she witnessed the shooting. However, other witnesses for the defense testified to the contrary.

Defendant complains that he Was not allowed a preliminary examination, as provided by section 2467a, Laws 1905, p. 133, which reads as follows: “No prosecuting or circuit attorney in this State shall file any information charging any person or persons with any capital offense until such person or persons shall have been accorded the right to a preliminary examination before sortie justice of the peace in the county where the offense is alleged to have been committed, in accordance with article 3 of chapter 16 of Revised Statutes of Missouri of 1899.”

In State v. Jeffries, 210 Mo. 302, it is said: “The grand jury may indict or under our present Constitution tbe prosecuting attorney may file his information, and even where a preliminary examination is required, it has been held that it was unnecessary for the information to allege that the accused had had a preliminary examination or had waived it. This is not a matter which goes to the merits of the trial, but the regularity of the previous proceedings. [Washburn v. People, 10 Mich. 383; State v. Barnett, 3 Kan. 250.]” See, also, Ex parte McLaughlin, 210 Mo. 657; State v. McKee, 212 Mo. 138.

Although the justice might, after a preliminary examination, discharge the prisoner, such action would in no way operate as a bar to an indictment, or to an information by the prosecuting attorney for the same offense, and whatever the justice might do in the case is from a legal standpoint merely preliminary. The matter complained of was a,t most an irregularity. Besides, the point was not made before or during the trial, and it must, therefore, be. regarded as having been waived. In no event could the question have been raised by motion in arrest, which is no part of the record proper.

It is said for defendant that the court admitted improper evidence for the State. But the action of the court in this regard being matter of exception, the point made should have been embodied in the motion for new trial, and preserved and brought before this court for review in the bill of exceptions. The record', however, shows that the defendant did not file his motion for new trial or in arrest of judgment until after judgment. Section 2689, Revised Statutes, 1899, provides that ‘ ‘ the motion for a new trial shall be in writing, and must set forth the grounds or causes therefor, and be filed before judgment, and within four days after the return of the verdict or finding of the court, and shall be heard and determined in the same manner as motions for new trials in civil .cases.”

On the 24th day of August, 1907, the jury found the defendant guilty of murder in the second degree, and fixed his punishment at ten years’ imprisonment in the penitentiary. Whereupon the defendant was informed by the court that he had been convicted of murder in the second degree, and his punishment assessed at ten years in the penitentiary, and the court asked him if he had any legal cause lo show why judgment should not be pronounced against him according to law, and the defendant failing to show such cause, judgment and sentence was passed upon him in accordance with the verdict of the jury. Thereafter, and upon the same day, the defendant filed his motion to set aside the verdict and for a new trial, which was overruled by the court, and exception duty saved. The question, therefore, is, whether the defendant, by failing to show cause why judgment should not be passed upon him and failing to except to the action of the court in sentencing him, thereby waived his right to file his motion, for a new trial within four days after the verdict. We hold that he did. The right to file a motion for a new trial is a privilege conferred by statute, and like any other privilege so conferred, may be waived by the defendant in a criminal case as well as by a party to a civil suit. A similar question was before this court in the ease of State v. Rosenblatt, T85 Mo. 114. In that case the question was as to the effect to be given a motion in arrest filed after final judgment. While a motion for new trial goes to matters of error and exception occurring during the pendency of the suit, the motion in arrest goes to errors appearing upon the face of the record proper; but the rule announced in the Rosenblatt ease applies as to either motion filed after judgment. The court in that case said:

“Both at common law and bv our statute a motion in arrest must be filed before sentence. Thus Chitty, in his Criminal Law (5 Ed.), vol. 1, page 663, says: ‘The defendant may move at any time in arrest of judgment, before the sentence is actually pronounced upon him;’ and again, ‘But if the sentence is once pronounced, though before the actual entry of the judgment, the court are not bound to attend at all to a motion of this nature, even though a formal error should be discovered, sufficient to. reverse the proceedings, but the defendant is left to his writ of error; though, as we have seen, the court may, without any motion, arrest the judgment, and may alter the sentence any time during the same term.’ Bishop, in his work on Criminal Procedure (1 Ed.), section 852, adopts Chitty’s statement of the practice on this subject.
“The practice in this State in criminal cases as to motions for new trial and in arrest of judgment is different from the practice in civil cases. In the latter we have not followed the common law practice of waiting for four days after the rendition of the Verdict before having’ the judgment signed and entered, but it is the approved practice in civil cases for the clerk to enter the verdict on the record, and the judgment upon it, and the right to file a motion for new trial or in arrest within the four days allowed hv the statute is not affected by the entry of the judgment before the filing of the motion for new trial or in arrest, whereas in criminal cases it is specifically provided by section 2689, Revised Statutes 1899, that such motion shall be filed ‘before judgment/ and the same is true of motions in arrest. [Sec. 2690, R. S. 1899.] And such is the accepted practice in this State.”

Defendant’s motion in arrest of judgment was also filed after judgment, and, for the reason stated in the Rosenblatt case, was too late to be available.

Objections to the information could be raised for the first time in this court, but this was not done by the insistence of defendant in his brief that Manes had no authority to arrest the defendant. The defendant was a deserter from the military service of the United States, and the deceased was constable of Liberty township, and city marshal of Richland, in Pulaski county, Missouri. As constable, he was authorized by the law of this State to arrest persons charged with crime in Pulaski county in this State, when armed with a warrant for that purpose and without warrant when the offense is committed in his presence.

Sec. 6 of the Act of Congress (30 U. S. Stat. at Large, p. 484) of June 18, 1898, provides: “That it shall be lawful for any civil officer having authority under the laws of the United States, or of any State, Territory, or District, to arrest offenders, to summarily arrest a deserter from the military service of the United States and to deliver him into the custody of the military authority of the General Government. ’ ’

It appears from the record that the following notice had been sent out by the government, and had come into the hands of the deceased:

“To all whom it may concern:
“Under Section 6 of an act of Congress, approved June 18, 1898, any civil officer having authority under the laws of the United States, or of any State, Territory or District, to arrest offenders, is authorized to summarily arrest a deserter from the military service of the United States and to deliver him into the custody of the military authority of the General Government.
“The following described enlisted men of the United States army having deserted from this station, on dates set opposite their names, persons authorized by the act .of Congress, hereinbefore cited, are requested to arrest them and arrange with the nearest military authorities as to the place where they shall be delivered up, whereupon a reward of $50 will be paid for each, and will be in full satisfaction of all expenses for arresting, keeping and delivering the deserter.
“Name — James C. Pritchett.” Then follow the dates of said Pritchett’s enlistment and desertion, his place of residence, etc.

It is clear from the act of Congress that the deceased had authority to summarily arrest the defendant, he being a deserter from the military service of the United States, and deliver him into the custody of the military authority of the Government. In making this arrest, the deceased was not acting as constable but as agent of the United States, and having power under the laws of this State to arrest offenders, he came within that class of persons referred to in the act of Congress as being authorized to arrest a deserter from the United States army, and he had authority, under said act, to make the arrest in any part of the State in which the defendant might be found. [State ex rel. v. Nast, 209 Mo. l. c. 728, 729; Bishop’s New Crim. Proc. (4 Ed.), p. 237.] It is true that under the law of this State the constable had no authority to make the arrest without a warrant therefor, but by the act of Congress, under which he acted, he was authorized to arrest the defendant without a warrant. His official capacity was known to the defendant; they lived in the same neighborhood and were well acquainted with each other, and the record does not show that thq defendant questioned the authority of the constable to arrest him. The deceased first arrested the defendant in Pulaski county, but he escaped from his custody, and when deceased subsequently rearrested him in Camden county, defendant shot and killed him.

An examination of the record satisfies us that it is free from substantial error.

The judgment is affirmed.

All concur.