Davis v. Blair

88 Mo. App. 372, 1901 Mo. App. LEXIS 63

• Court: Missouri Court of Appeals
• Decided: April 9, 1901
• Status: Published

Opinion

BOND, I.

It is insisted by the learned counsel for appellant that the motion filed at the subsequent term of the circuit court of Clark county to set aside a final judgment as shown upon the records of that court, at a former term, is an apt and proper method for procuring the vacation and annulment of the judgment claimed in said motion to have been entered upon the record of the court without its authority and without any appearance of the parties.

In the view we take of the case, it is unnecessary to decide whether the motion in question is available as one in the nature of a writ of error coram nobis (63 Mo. App. loc. cit. 5), as proper under section .795, Revised Statutes 1899, permitting motions to set aside judgments for irregularities to be filed within three years, or as tantamount to a bill in equity to set aside a judgment claimed to have been procured by fraud, since the record and admissions of the parties on this appeal show the total extinguishment of the judgment sought to be attacked, by a full and complete performance of its mandate and directions. Noah v. Ins. Co. 78 Mo. App. 370.

In view of this fact, it is wholly irrelevant whether the judgment was concocted by fraud or was validly entered upon the consent and appearance of the parties thereto. It is now fundus officio, wherefore the question of the legality or illegality of its obtension is a mere abstraction with which it is no part of the business of appellate courts to deal. Our conclusion is, that the learned circuit judge did not err in overruling the motion in question.

The judgment is, therefore, affirmed.

All concur.