WALKER, J. —
This cause was certified here by the St. Louis Court of Appeals, because title to real estate was involved. To get at the real issues a short statement of the facts will suffice.
This is an action to quiet title under old section 650, Revised Statutes 1899. Petition was filed September 12, 1905, in the circuit court of Pemiscot county. Defendants appeared and filed answer at the regular November term of that court. ‘ At the request and costs of Thomas B. Sims, it was continued over to the February term of said court. At the February [32]*32term said Sims took a change of venue to the Ste. Genevieve Circuit Court, and the cause was duly docketed for trial at the April term, 1906, of said last named court. At said April term, said Sims, through his attorney, Judge George H. Williams, applied for and obtained a continuance of the cause until the 23rd day of July, 1906:, and was taxed with the costs of such continuance.
On said 23rd day of July, the said Sims again appeared through his attorneys, Whitledge & Pratt, and filed his application for a continuance to the next regular term of the court, which was by the court refused, and thereupon the said Sims, through his said counsel, refused to appear further in the case. The judgment record of the court on July 23, 1906, being a part of the April, 1906, term of the court, thus speaks:
“Now come the plaintiffs by their attorneys, and all the defendants having appeared, and answered plaintiffs’ petition in said cause, say nothing further in bar of plaintiffs ’ action. Thereupon, plaintiffs, by their attorneys, waive a jury and submit this cause to the court upon the pleadings and the evidence and proof adduced in said cause, and the court, having heard and considered the same doth find that the plaintiffs are the owners in fee of the land described in the petition as fqllows, to-wit: The northeast quarter of section twenty-eight, in township nineteen, north of range twelve east, lying, being and situate in Pemiscot county, Missouri, and that the plaintiff, Susan Jeude, is the owner and entitled to a dower interest in said land as the widow of Casper Jeude, deceased, and that each of the other plaintiffs owns an undivided one-fifth interest in fee in and to said land, subject, however, to the said dower interest of Susan Jeude, and that the defendants, nor either of them, has any right, title or interest or estate in and to said above described land. It is therefore ordered and adjudged and decreed by the court that the absolute legal and equitable [33]*33title to said land is in the plaintiffs, Snsan Jende, Walter G. Jende, Fredreca M. Jende, Emma L. Jeude, Herbert L. Jende and Charles C. Jende; and that the defendants and those claiming under them are hereby precluded and forever barred from setting up any right, title, interest or estate in or to the above described land. It is further considered, ordered and adjudged by the court that plaintiffs have and recover of and from the defendants, Thomas B. Sims, Laura B. Tistadt, Clara M. Barcroft, Mary F. Liles and Bettie Green, their costs in this suit expended and laid out and that they, the above mentioned plaintiffs, have execution therefor. ’ ’
The application for continuance, mentioned supra, becomes a material matter, because of the facts therein recited:
“And now comes the above named Thomas B. Sims, by T. B. Whitledge and Joseph Pratt, his attorneys, and moves the court to continue this cause to the 24th day of July, 1906, for the reason stated in the following affidavit:
“T. B. Whitledge, being duly sworn, says that one George H. Williams of St. Louis is the principal attorney for the defendant in this cause, and that himself and Joseph C. Pratt were employed by the said Mr. Williams at the last term of this court to assist in the trial of the said cause, and that they knew nothin of the merits of the case, and are not prepared and cannot safely go to trial at this term of the court on account of the absence of the said George H. Williams, the attorney of the defendant as above stated. That himself and Mr. Pratt fully expected the said Mr. Williams to be in attendance for the trial at this term of court, and fully expected him to arrive at the 10:30 train from St. Louis, and upon his failure to arrive upon said train he called up by telephone the St. Lotus office of Stewart, Elliott & Williams, the law firm of [34]*34the said George H. Williams, of St. Louis, and was informed' by the person in charge of the office that Mr. Williams was absent from the city, and further stated that a copy of a letter was on the files of their office written by Mr. Williams to Ely & Kelso, a firm of lawyers at Kennett, Missouri, which stated that he, Mr. Williams, had seen Mrs. and Miss Jeude, two of the defendants in the above entitled cause, and made an agreement with them that this case was to be continued by consent to the next regular term of this court; that the said letter was dated on June 18, 1906, and that said Ely & Kelso were in said letter directed to inform Mr. Gossom, the attorney for the plaintiffs in this cause, of the said agreement for continuance ; that the letter files also contained a letter from the said Ely & Kelso, dated June 23rd, acknowledging the receipt of said letter, and stating that they would inform Mr. Gossom of the agreement to continue, and that the said George H. Williams, in good faith, and relying on the said agreement with the above named plaintiffs, and for that reason alone, did not come ■down’ for the trial of this cause at this time. The affiant further says that he was informed that Mr. Williams could be here in time for the trial of said cause by tomorrow morning if the court would continue it until that time. Affiant further says that neither he himself or Mr. Pratt have any of the title "deeds necessary to be introduced in this cause in order to properly defend the said action; that all such title deeds are in the possession of the said Mr. Williams and Thomas B. Sims, the defendant, and affiant further states that he is informed and believes that the said Thomas B. Sims is now sick and unable to be in attendance for trial at this term of court, and that the defendant cannot safely go to trial without the presence and the testimony of the said Thomas B. Sims. That the said George TI. Williams and the said defendant, Thomas B. Sims, are not absent by the con[35]*35sent or connivance or procurement of this affiant, and this affiant has good reason to believe and does believe that the said George H. Williams will be on hand and ready for trial of this cause tomorrow morning at 10:30 o’clock a. m., if the said cause is continued to that time, and that great injustice will be done to the defendant in this cause if such continuance is not granted; that the affiant in this case hereby in open court offers and tenders all reasonable expenses to the plaintiff, witnesses, counsel and costs of court that may accrue by reason of the continuance of this cause until tomorrow morning at 10:30 a. m.; and the affiant further states that there are no other causes now pending and •ready for-trial before this court, that no injustice will be done to any parties by reason of said delay, but that great injustice will be done by the denial of this application, and that this application for a continuance, in this cause is not made for the purpose of vexation or delay, but that substantial justice may be done, and that the defendant has a good and meritorious defense in this cause.”
We have omitted the caption and the verification.
After the April term, 1906, the term at which the foregoing judgment was rendered, nothing further was done in the case until the April term, 1907, at which time the following motion was filed in the original cause:
“Now comes defendant, T. B. Sims, and moves the court to set aside the judgment rendered herein against this defendant on the 23rd day of'July, 1906, for the reason that said judgment is irregular, prematurely rendered, and wholly unwarranted for the following reasons, to-wit:
“First, because said judgment was obtained by plaintiffs in the absence of defendant. Said defendant being absent at the instance of the plaintiffs and upon an agreement made and entered into by and be[36]*36tween plaintiffs and defendants that said cause would not he taken up for trial but should be continued.
11 Second, said defendant would have been present at the trial in person and by counsel had it not been for the undue advantage taken hy plaintiffs in securing an agreement to continue the case. Defendant had made every arrangement to be present at the trial of said cause when plaintiffs entered into an agreement that said cause would he continued, and that the parties would not go to Ste. Genevieve to court.
‘£ Third, that in violation of said agreement to continue said cause made with the plaintiffs, and notwithstanding the fact that this defendant did not go to said trial solely because of said agreement, -yet these plaintiffs taking advantage of said agreement to continue said cause and the absence of the defendant because of said agreement did attend the said court and asked that judgment be entered against this defendant.
££Fourth, defendant says by reason of said agreement that said judgment is not only irregular, but fraudulently obtained against this defendant.
££ Fifth, that if said judgment is permitted to stand, it would deprive this defendant of his property without due process of law.
££ Sixth, that the property described in said petition, to-wit: All of the northeast quarter of section twenty-eight, township nineteen north, range twelve east, in Pemiscot county, Missouri, is the - absolute property of this defendant. All of which would fully appear from a trial of this cause upon the merits.”
We have again, for brevity, omitted caption and verification. Suffice it to say that this motion was filed in the original proceeding, and entitled just as was the' petition.
Plaintiffs joined issue by answer, the terms of which are not very material in the view we have taken [37]*37of this case. When the motion came on for hearing, the plaintiffs objected in the following language:
“George IT. Williams, being duly sworn, testified on the part of the defendant, as follows:
“Examined by Mr. Kelso.
“Judge Gossom: I now desire to object to the introduction of any testimony whatever under this motion, for the reason that the motion shows upon its face that it will not lie in a proceeding of this kind after the term of court at which judgment was rendered had expired, and for the further reason that the motion shows that the facts and questions proposed to be adjudicated in this case cannot be reached by a motion of this kind, and it is not a matter discretionary with this court.
“By the Court: Let the objection be overruled.
“Judge Gossom: We except.”
After a hearing upon this motion the court sustained the same and set aside the original judgment of July 23, 1906, and from that judgment so sustaining said motion and setting aside the original judgment, the plaintiffs have appealed. Around these facts center all the contentions here.
Setting Aside Judgment: After Appearance I. There are but three possible views in which to consider the document upon which the judgment appealed from in this case is based, i. e.: (1) that it is a motion under our statutory provisions, (2) that it is a motion in the nature of an application for a writ of error coram nobis, and (3) that it arises to the dignity of a bill in equity to set aside a judgment for fraud. Of these -in their order-:
For some years we have had what is now section 2101, Revised Statutes 19091, on the books. This section reads:
[38]*38“When such interlocutory judgment shall be made and final judgment entered thereon against any defendant who shall not have been summoned as required by this chapter, or who shall not have appeared to the suit, or has been made a party as the representative of one who shall have been summoned or appeared, such final judgment may be set aside, if the defendant shall, within the time hereinafter limited, appear, and by petition for review, show good cause for setting aside such judgment. ’ ’
The time limit for a review of the case under this statute is fixed at three years from the rendition of the final judgment. [Sec. 2103, R. S. 1909.]
This section 2101 has no application to the case at bar, because the defendants in the instant case not only appeared to the original petition, but they filed an answer thereto. • From the plain wording of this statute, it cannot be said that it applies to the case at bar. The parties do not fall within the class intended to be benefited by this section of our statutory law. When they appeared and filed answer to the petition, they took themselves from under the protecting wings of this legislative act — if they were ever in position to claim its benefits.
Thereafter they were obliged to conduct themselves as the ordinary litigant, even throughout the weary length of the case. They could not throw up their hands at the first adverse ruling, and by deserting the case gain advantage for themselves. The document filed by them at the April term, 1907, of the court, cannot be considered as a motion under the statute quoted, supra.
Sections 2119 and 21201, Revised Statutes 1909, are our Statute of Jeofails, and definitely prescribe upon what irregularities a judgment shall not be set aside. We then have these statutes followed by section 2121, Revised Statutes 1909', which reads:
[39]*39“Judgments in any court of record shall not he set aside for irregularity, on motion, unless such motion he made within three years after the term at which such judgment was rendered. ’ ’
Section 2121, Revised Statutes 1909, was section 795, Revised Statutes 1899.
In State ex rel. v. Riley, 219 Mo. l. c. 681, we had occasion to consider the scope and the character of a motion under this section of the statute. We there said: “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. Grott, 13 Mo. l. c. 461.]”
In the Phillips case, supra, this court said: “Although a judgment may for irregularity be set aside at any time within three years (Wagn. Stat., 1062, §26), yet such irregularity must be one patent of record and cannot be shown by matter dehors the record. ’ ’
The other cases cited are to a like effect. The instrument filed in this case is not one covered by this statute. The errors or wrongs complained of therein were not patent of record, but were dependent upon proof dehors the record.
In all cases, except those provided for by these statutes, a court has-no authority to disturb its judgment after the lapse of the term. This has been so universally ruled, that citations would be to become superfluous.
The defendants, therefore, are in no position to lay hold of either of these two statutes, and the original judgment was wrongfully set aside after the lapse of the term, unless such action can be upheld upon one of the other two theories remaining to be discussed.
[40]*40Application Erro^rit °f Coram Nobis‘ II. Is the document filed by the defendants a motion in the nature of an application to the court for the common law writ of error coram nobis? Does it go to questions for which such a motion is permitted under the practice in this State? Wken the instrument upon which the judgment vacating the original judgment is examined, both these questions must be answered in the negative. At common law writs of error coram nobis were writs granted by the court rendering the judgment for the purpose of correcting some error of fact. [2 Tidd’s Practice, p. 1136.] The fact must be such a fact, that had it been known at the time of the rendition of the judgment, such judgment would not have been entered. It must be a fact directly connected-with the case in which the judgment was entered, and a fact wrongly -considered in the entry of the judgment which is sought to be corrected by the writ of error coram nobis. To illustrate, the court enters a judgment against a dead person after service, on the theory that he is still alive, or against a minor thinking such minor was an adult. In other words, the erroneous fact must be one which entered into the very makeup of the judgment sought to be overruled and set aside by the writ, and. the real fact sought to be established upon the hearing of the writ must be one which would have prevented the entry of the judgment had it been known to the court. [State v. Stanley, 225 Mo. l. c. 534; State ex rel. v. Riley, supra.] In the Stanley ease, supra, this court said: “But again, this writ is'only allowed to recall some adjudication made while some fact existed which, if before the -court, would have prevented the rendition of the judgment, and which without any fault or negligence of the party was not presented to the court.” The motion in this case simply sets up that the plaintiffs fraudulently misled counsel for the defendants as to the time of the trial of the cause. Whilst such conduct, if shown upon a trial by [41]*41bill in equity to set aside the judgment for fraud, would perhaps be good, yet we fail to find any ease wherein such fact is a ground for the common law writ of error coram nobis. In our practice a motion is considered as an application for such a writ. The writ being heard in the same court which issues it, is usually never issued at all, but the matter is determined upon a hearing of the matters raised in the application (in this State in the motion) as if a formal writ had been issued. [5 Ency. Pl. & Pr. 36.]
The trial of the issue of fraud used in preventing the party from being present and making a defense, is the trial of an issue outside of any issue involved in the case in which the judgment is rendered. It is not an issue in that case, and in my mind not an issue out of which an error of fact can arise, which would authorize a writ of error coram nobis. The error of fact to be corrected by the writ of error coraml nobis must be errors of fact pertinent to the issues in the case, and not mere extraneous matters.
We are, therefore, of the opinion that this mo-' tion can not be considered as a motion in the nature of a writ of error coram nobis.
Setting Aside Judgment Obtained by Fraud: Motion in Nature of Writ of Error Coram Nobis. III. But even if we grant the proposition that the fraudulent misleading of a party as to the time of the trial is a pertinent issue entering into and culminating in the judgment sought to be set aside, and that this motion should be considered as an application for a writ of error coram nobis, yet the judgment on such application is erroneous under the facts in the case. In the record before us we have the affidavit for continuance. This affidavit sets out the facts of an agreement to continue. It sets out the very things charged in this motion or application. It is, therefore, apparent from the face of the record before us that the fact of this alleged agreement [42]*42was not only known to counsel for defendants, but that, it was brought to the attention of the court before the: rendition of the judgment in the case — the judgment, attacked by the motion and vacated by the court nisi..
It is the universal rule that if a fact be known', prior to the entry of judgment, or by reasonable diligence it might have been known prior to the entry of the judgment, such fact can not be relied upon under the common law writ of error cor am nobis,, to set aside such judgment. The cases upon this point will be found collated in Reed v. Bright, 232 Mo. l. c. 410 et seq., and in State v. Stanley, 225 Mo. l. c. 532 et seq. The general rule is stated in 5 Ency. PI. & Pr.. 29, in this language: “The writ will not lie where: the party complaining knew the fact complained of, at the time of or before trial, or by the exercise of reasonable diligence might have known it; or is otherwise guilty of personal negligence in the matter; or when proper advantage could have been taken of the alleged error at the trial. ’ ’
The fact complained of in the case at bar was not only a fact known to counsel for defendants prior to. entry of judgment, or the trial of the case, but one actually called to the attention of the trial court by them in the motion for continuance. It was, therefore, a matter within the knowledge of the parties (for the knowledge of one’s attorneys is his knowledge) and within the knowledge of the court which entered the judgment. So that even if we consider the motion as and for the writ of error coram nobis, the judgment appealed from in the case before us is wrong upon the .showing made.
as" bUi ¡n Eauity. IV. Counsel for respondents do not seriously contend in their brief that this proceeding ¡is one in equity to set aside a judgment for fraud in the procurement thereof. Stated differently, they do n°t contend that the instrument here un[43]*43der consideration is a bill in equity to set aside a judgment for fraud. It is clear that it is not such instrument. To have invoked equity would have meant the bringing of an independent action, and this does not purport to be an independent equitable action. As it is not a bill in equity upon its very face, it is useless to discuss the question whether or not it states facts sufficient to constitute a good bill in equity.
Theoi>y: at Trial. V. But counsel for respondents urge that the plaintiffs filed an answer to the instrument filed by defendants, and that for this reason they should be precluded from questioning its sufficiency now. Plaintiffs treated this instrument as a motion, and they challenged the sufficiency thereof by objection to the introduction of any evidence under the same. This objection we have set out in the statement of facts, and it is such as to protect all rights of the plaintiffs. Defendants proceeded nisi as if it were a motion in the nature of a writ of error coram, nobis, and by that token they must be judged here.
VI. Lastly, it is contended that this motion to set aside the judgment is not preserved in the bill of exceptions, and for that reason the judgment thereon is not for review here. This contention will not avail the defendants. First, if this document is neither a bill in equity nor an application for a writ of error corám nobis, but is a simple motion to set aside a judgment, it matters not whether it is here at all. The record proper is here. This record shows a judgment in due form at the April term, 1906, and then it shows that the court set aside that judgment at a subsequent term, i. e., at the April term, 1907, upon a motion filed at such subsequent term. The judgment under review here denominates it a motion. Note the language of that judgment: “Now on this day come the parties in the above entitled cause by their respective attorneys herein, and the motion to set aside judgment in [44]*44the above entitled cause was by the court, taken up and after duly considering the same and hearing testimony regarding same, and argument of counsel^ the court sustains the same. It is therefore ordered and adjudged by the court that said judgment heretofore rendered in the above entitled cause be set aside and vacated. It is further ordered and adjudged that defendants have and recover of plaintiffs his costs on this behalf expended and have execution therefor.”
So, taking the record proper we have a valid judgment entered at the April term,' 1906, and such judgment set aside at a subsequent term of the court, a time when the court had lost all jurisdiction over the judgment.
And, secondly, if we consider the instrument filed, as a motion in the nature of an application for a writ of error coram nobis, then such document is in the nature of a pleading (5 Ency. PI. & Pr. 33) or petition, and is a part of the record proper, and does not have to be preserved by bill of exceptions. All the books and the cases treat a-motion of this kind as a petition, and as the foundation for the relief sought, and being of that character it should be treated as record proper.
Prom what has been said it follows that the judgment vacating’ the former judgment should be reversed, to the end that the original judgment may stand in full force and effect. It may be that defendants have a remedy, a matter we do not decide, but this judgment is wrong and should be reversed. It is so ordered.
All concur except Lamm, C. J., who dissents in an opinion filed, and Faris, J., who does not sit.