sound in the second proposition laid down by plaintiff. Dougherty v. Whitehead, 31 Mo. loc. cit. 257; Glover v. Henderson, 120 Mo. loc. cit. 376, 25 S. W. 175, 41 Am. St. Rep. 695. Plaintiff relies more upon the second proposition than upon the first, as he says in his brief:

son

"This is not a case where the procuring cause is in question, so much as it is one of one perer, with the understanding that such other is to establishing a relationship with anothdo certain work and get compensation therefor, and in the midst of the services, and when, aft

be in Charleston within a few days and would take up the matter of this loan. On the same day defendant wrote McKinney in care of W. S. Edwards, New Madrid, instructing McKinney that if the loan was especially attractive, he might, on account of its size, make it at the rate plaintiff was asking. Plaintiff had no further communication from defendant until May 4th, when he received a letter from defendant, terminating his authority as the representative of defendant on the ground that plaintiff had not given defendant his services, but had placed practically all of the farmer the expenditure of money and effort by such loan applications he had secured in Pemiscot and New Madrid counties with the Common Wealth Farm Loan Company, a business rival of defendant in the two counties mentioned. The land records of New Madrid county disclosed that from February to May,

1915, plaintiff had procured loans in New Madrid county aggregating about $49,000, but none of these were placed with defendant. The plaintiff, howeyer, had two loans under way in New Madrid county aggregating about $9,000 when his authority was terminated, and these were afterwards completed, and plaintiff received his commissions on them. W. S. Edwards of New Madrid succeeded plaintiff as the representative of defendant in Pemiscot and New Madrid counties, and

Edwards, on May 17, 1915, through Mr. R. J. Miller procured and forwarded to defendant the application of the Alfalfa Farming Company for a loan of $50,000. This loan was not made until December 21, 1915, the interim for the most part being taken in perfecting title, etc. The loan was made for $45,000. The commission of the local representative on this loan was paid to Edwards, and amounted to $463.25. Defendant filed demurrer at the close of plaintiff's case and at the close of the whole case, which demurrers were overruled. Plaintiff claims right to recover upon two theories: (1) That the defendant made use of the information and services he had given it in connection with this loan, and that on the principle of law relative to a real estate broker he is entitled to the commission; (2) that where an agent is employed to perform an act which involves the expenditure of labor and money before it is possible to accomplish the desired object, and after the agent has in good faith incurred expenses, and expended time and labor, but before he has a reasonable opportunity to avail himself of the results, that the principal may not then terminate the agency and use the agent's services, without compensating therefor.

[1, 2] There is no doubt but that a real estate agent who has been commissioned to find a purchaser, and finds one or puts his principal in touch with a purchaser, and thereafter the principal or seller terminates the agency and completes the sale to the purchaser discovered by the agent, the agent may recover his commission. Dodge v. Childers, 167 Mo. App. 448, 151 S. W. 749. So is the principle

person, success is in sight, the person bringing about the relationship severs it without the consent of the other, receives the fruit of his labors, and refuses to pay therefor, or to permit the agent or representative to complete his work and get his pay."

[3, 4] If plaintiff was supported by the facts, we would have no hesitancy in saying that he could recover upon either theory the facts supported. It will be noted that under either theory the defendant must have made some use of the information furnished or the services given. This case, therefore, turns upon the question of fact as to whether defendant made use of any information furnished it by plaintiff in connection with the loan to the Alfalfa Farming Company, or made use of any services rendered by plaintiff in connection with said loan. On this point Edwards, a witness for defendant,

testified:

"I think it was probably in May, 1915, that I noticed the advertisement of the Columbia Mortgage & Trust Company. I went to Memphis and saw them, and while I was talking to them they told me Mr. McKinney was making a trip through that territory, and that I could probably be given some territory to represent them in, and I took some blanks home with me, and a day or two after I came back Mr. Miller was in my office; * * *he is a loan broker; * * and he told me about this loan of the Alfalfa Farming Company; that they were ready and willing to pay six per cent.; so I down and got it, and Mr. Russell filled it out gave him an application blank, and he went and forwarded it to me. I had no communication with E. R. Johnson about the matter at all. thing to assist me in getting the application. He furnished me no information nor did any I got no information or suggestions from the Columbia Mortgage & Trust Company about this application. If the Columbia Mortgage & they never said so to me." Trust Company ever knew anything about it,

On cross-examination:

"My remembrance is that the Columbia Mortgage & Trust Company never wrote to me about this application until I sent in the application, and I say to the jury that the Columbia Mortgage & Trust Company, through its president, Mr. Grant, in the conversation at Memphis, never said anything about the Alfalfa Farming Company or Mr. Russell at Hayti. I don't recall that they mentioned any prospective loan which they had."

E. L. Fowler, manager of the farm loan department of defendant, testified:

"The Columbia Mortgage & Trust Compary did not give Mr. Edwards any information about a loan of T. P. Russell or the Alfalfa Farming Company before Mr. Edwards communicated it. and when we terminated the arrangement with

It will be noted here that Russell says that plaintiff saw Mr. Miller, presumably, though not stated, about this loan, from which it might be inferred, disconnected from Miller's and plaintiff's evidence, that Miller obtained from plaintiff the information that concur.

WARREN et al. v. ORDER OF RAILWAY
CONDUCTORS OF AMERICA et al.

(No. 2080.)

attention of the court that the person insured is
in fact alive.
9. PAYMENT

84(1) VOLUNTARY PAYMENT WITH FULL KNOWLEDGE-RECOVERY. Money paid voluntarily with full knowledge of all the facts and without any fraud having been practiced cannot be recovered back because of ignorance as to legal liability.

(Springfield Court of Appeals. Missouri. Feb. 6, 1918. Rehearing Denied March 14, 1918.) 1. JUDGMENT 334-MOTION TO SET ASIDE-10. PAYMENT 85(2) — INVOLUNTARY PAY"WRIT OF ERROR CORAM NOBIS."

Motion filed to set aside judgment for plaintiff in an action against a life insurer for death of a person insured on the ground that such person was in fact alive was in no sense in the

nature of a "writ of error coram nobis."

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Writ of Error Coram Nobis.]

2. DEATH ~2(1) — PRESUMPTION OF DEATH FROM ABSENCE.

It is prima facie evidence of the death of a person that he has absented himself for seven years and has not been heard from; a presumption of his death arising.

3. JUDGMENT 363-DUTY TO VACATE DURING TERM FOR MISTAKE OF FACT-STATUTE. Where judgment went for plaintiff in an action on a life insurance policy, had the trial judge discovered during term that the person insured was alive, it would have been his duty to set aside the judgment, under Rev. St. 1909, § 2022.

4. JUDGMENT 298, 341-CONTROL OF BY TRIAL COURT DURING TERM.

The trial court has authority to control its orders and judgments during the term at which they were made or rendered, and they may be modified or set aside in the interest of impartial justice.

5. APPEAL AND ERROR 790(2) — REVIEW MATTERS NOT NECESSARY TO DECISION.

Vacation of a judgment ipso facto destroys or releases the lien on the property of the judgment debtor, so that court on appeal will not consider propriety of order vacating record of satisfaction of judgment.

6. JUDGMENT 401-VACATION AFTER SATISFACTION-ORDER OF RESTITUTION.

Where the beneficiary secured judgment against a life insurer, and such judgment was satisfied, and later vacated because it was discovered that the person insured was alive, the trial court had authority to order the beneficiary to make restitution of the moneys she had re

ceived from the insurer.

7. JUDGMENT 401-VACATION AFTER SAT

ISFACTION-RESTITUTION AGAINST COUNSEL
AS WELL AS AGAINST JUDGMENT CREDITOR.

MENT-RECOVERY BACK.

Where the beneficiary recovered judgment against a life insurer for death of the person insured, and the insurer satisfied the judgment, its payment was involuntary, not voluntary, and may be recovered back on vacation of the judg ment; it having been discovered that the per

son insured was in fact alive.

11. JUDGMENT 401-VACATION OF JUDGMENT AFTER SATISFACTION-RESTITUTIONATTORNEYS.

Where the beneficiary in a life policy made a contingent fee contract with one member only of a firm of three lawyers, and judgment was recovered against the insurer, and the attorney individually received his contract contingent share of the proceeds of the judgment, which was later vacated because it was discov ered that the person whose life was insured was in fact alive, the court was not justified in rendering judgment of restitution against the two other members of the firm, neither of whom had received any part of the proceeds of the vacated judgment, or had any contract with the beneficiary.

Sturgis, P. J., dissenting in part.

Appeal from Circuit Court, Greene County; Arch A. Johnson, Judge.

Suit by M. T. Warren against the Order of Railway Conductors of America and another, resulting in judgment for plaintiff, which was satisfied by defendants. On defendants' motion the judgment was set aside, and plaintiff and her counsel ordered to return the moneys received in satisfaction of the judgment, and plaintiff and her counsel appeal. Order and judgment of restitution against two of counsel reversed, and order setting aside the judgment against defendants, and the satisfaction thereof, and the judgment of restitution against plaintiff and a third one of her counsel, affirmed.

Hamlin & Hamlin, of Springfield, for appelWhere the beneficiary recovered judgment lants. Tatlow & Mitchell, of Springfield, for against a life insurer for death of the person respondents. insured, and the judgment was later vacated after satisfaction on discovery that the person insured was in fact alive, and the beneficiary's attorney, who had participated in the proceeds of the judgment under a contingent fee contract, was served with notice of the filing of the insurer's motion to set aside the judgment and for restitution, and appeared at the hearing, but sought to limit his appearance as for the beneficiary only, but he participated without any reservation in settling the agreed statement of facts, he thereby invited the court to pass judgment, and hence the court was clothed with jurisdiction and power to render judgment for restitution against him as well as against the beneficiary.

8. JUDGMENT 401-VACATION AFTER PAYMENT-RIGHT TO RESTITUTION.

A life insurer which pays a judgment for death of the person insured with knowledge that he is alive cannot have restitution on vacation of the judgment against it when it comes to the

BRADLEY, J. On August 21, 1914, plaintiff, M. T. Warren, filed her petition in the circuit court against the defendant Mutual Benefit Department of the Order of the Railway Conductors of America, and afterwards, on January 3, 1917, an amended petition was filed making the Order of Railway Conductors of America a party defendant. Defendants limited their appearance to a plea to the jurisdiction. The trial court on February 3, 1917, overruled the plea to the jurisdiction, and upon trial judgment went in favor of plaintiff.

The facts are as follows: Andrew L. Warren, husband of plaintiff, on the 22d day of February, 1907, had a policy or certificate of insurance then in full force in the Mutual

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Benefit Department of the Order of Railway Conductors of America, in which plaintiff was named as beneficiary. Warren disappeared on the last-named date, and was not heard of until March, 1917. After waiting more than seven years after the disappearance of her husband, plaintiff filed suit on the policy. It does not appear why, but the case was passed from term to term covering a period of some two years and six months. On February 2, 1917, at the January term of the circuit court, upon a trial before the court without a jury, judgment went for plaintiff. On the 5th day of February defendants filed their motion for a new trial and in arrest. No action was taken on these motions until the 24th day of February, at which time the defendants appeared in open court and announced that they were ready and willing to pay the judgment rendered against them, and the motions were thereupon overruled, the judgment and costs were paid, and plaintiff by her counsel in open court acknowledged satisfaction; all of which matters were entered of record. The certificate or policy sued on being at that time misplaced, plaintiff by her attorneys gave a receipt for the policy, which receipt provided that in the event the policy was found it would be delivered to defendants. Counsel for plaintiff had a contract by which the fee was contingent upon recovery. Upon the payment of the judgment plaintiff and her counsel received their respective proportions thereof according to contract.

that at the time the said judgment was satisfied, to wit, on the 24th day of February, 1917, the attorney for plaintiff had mislaid the certificate sued upon, and was unable to produce the same so as to turn it over to the defendant at the time of the satisfaction of the judgment, and that the defendant, in addition to the satisfaction of the judgment, in open court took a receipt from plaintiff showing the satisfaction thereof, and that the certificate was to be turned over to defendant if the same should be found. It is further admitted that neither the plaintiff nor Andrew L. Warren paid any assessments under the said certificate of insurance since the 22d day of February, 1907, which kept the certificate in force until April, 1907 [1917] as the said Andrew L. Warren was required to do by the constitution and by-laws and the terms of said order, as well as the terms of said certificate, in order to keep the said insurance provided for by the terms of said certificate in force, and that on the said 24th day of Febru ary, 1917, when the said judgment was satisfied of record as aforesaid, nothing had been paid as dues or premium on the said certificate of insurance by the said Warren since February 22, 1907, because the plaintiff believed her hus band, Andrew L. Warren, had died on or about not at any time tendered back to the plaintiff February 22, 1907; that the defendants have the receipt taken at the time of the satisfaction of the judgment as aforesaid. It is further admitted that the plaintiff in good faith instituted insurance policy believing Andrew L. Warren and prosecuted the action to judgment on said to be dead. It is admitted that Hamlin, Collins & Hamlin had no interest in said judgment other than attorneys for the plaintiff; that under the contract with the plaintiff O. T. Hamlin was to be paid by the plaintiff as a contingent fee one-half of whatever might be recovered by the plaintiff in this case, and that ant a check for the full amount of the judgment he, the said attorney, received from the defendand cost, and, after paying the cost, he accountap-ed to and paid the plaintiff one-half thereof and retained the other half under his said contract."

In these circumstances defendants peared in court on the 19th day of March, 1917, during the same term at which judgment was rendered, and filed a motion or written suggestions asking that the judgment be set aside, and that plaintiff and her counsel be required to make restitution. The motion or suggestions recited the fact of judgment, payment, and satisfaction, and charged that the insured, Andrew L. Warren, was not dead at the time the judgment was rendered, but was at that time, and was then, alive. Notice of the filing of this motion and that it would be called up for hearing on March 24th was duly served upon plaintiff, and was served upon W. W. Hamlin, of the firm of Hamlin, Collins & Hamlin, counsel for plaintiff. The hearing of this motion was passed until the 14th day of April, which was still the January term. At the hearing of this motion the parties made the following admissions upon which the court determined

the motion:

The trial court upon the hearing of the motion set aside the judgment and ordered the plaintiff to return to defendants the amount of money she had received as the proceeds of the judgment, and ordered the firm of Hamlin, Collins & Hamlin, counsel for plaintiff, to return to defendants the amount of money received by them as the proceeds of the judgment, and also ordered the clerk of the court to return to defendants the amount paid to him as costs and execution was ordered to issue to satisfy said order and judgment for restitution. From the action of the court in setting aside the judgment and the satisfaction thereof, and ordering restitution as aforesaid, plaintiff and her counsel appeal to this court.

Appellants assign as error: (1) The act of the trial court in setting aside the judgment, and the satisfaction thereof; and (2) the order and judgment for restitution against plaintiff, and her counsel.

"It is admitted that said judgment has been paid and fully discharged and satisfaction en- I. Learned counsel for appellants in their tered in open court, and that since the satisfac- brief concede that the trial court had the tion of such judgment the plaintiff and defendants have learned that Andrew L. Warren did power and authority during the term which not depart this life on the 22d day of Febru- the judgment was rendered, independent of ary, 1907, as alleged in the petition, or at any any motion or suggestion, to set aside the other time, but that on the 3d day of Febru- judgment for good cause. But they say, since ary, 1917, at the time said judgment was rendered, the said Andrew L. Warren was then the fact that Warren was alive at the time and still is in full life. It is further admitted the judgment was rendered and paid was

called to the attention of the court by the motion, as a consequence the court in dealing with this motion was bound by the law governing the common-law writ of error coram nobis. This ancient writ is frequently invoked to aid our Code, so to speak, to the end that substantial justice may be done. In Cross v. Gould, 131 Mo. App. loc. cit. 597, 598, 110 S. W. 672, 677, Judge Nortoni of the St. Louis Court of Appeals very clearly defines the purposes of this writ, and gives numerous instances where it may be invoked.

It is there said:

writ of error coram nobis. It is apparent that the error of fact upon which the court was asked to act in setting aside the judg ment was upon a fact which would be submitted to a jury, or the court sitting as a jury. This fact, of course, was the alleged death of Warren, without proof of which plaintiff could not recover.

The trial court in its order setting aside the judgment says:

"It is therefore ordered, considered, and adjudged by the court that the suggestions and motion heretofore filed by the defendants to set aside and vacate the judgment heretofore rendered and satisfaction thereof, and require restitution to the defendants, be, and is hereby, sustained, and the said judgment as well as the satisfaction thereof on the suggestions and motion aforesaid as well as under the power of the court to revise and correct during the term its judgments of its own motion is hereby vacated, annulled, and set aside."

[2-4] It clearly appears, therefore, that the learned trial court invoked its power to set aside the judgment independent of any motion or suggestion. It cannot be contro

"A writ of error coram nobis is parcel of that procedure which came to us with the common law. It issues out of and for the purposes of review by the same court in which the record lies and predicates upon errors of fact as contradistinguished from errors of law. Besides, for error in process through the default of the clerk, * * * the writ would lie at common law when the court had proceeded in a case as though a fact which was material to its right to proceed existed, when it did not exist, and when the absence of the fact assumed to exist entirely defeated the power of the court to attain a valid result in its proceeding. It may be taken as a proposition settled entire-verted that the court found as a fact the ly beyond controversy in the law of this country and England that the writ of error coram nobis does not go to errors arising on facts submitted to a jury, referee, or to the court sitting as a jury to try the issues of fact. Nor will this writ lie for the purpose of correcting errors of law."

*

death of Warren, when in truth that was not the case. Plaintiff made a prima facie showing that Warren was dead by offering evidence that he had absented himself for seven years, and had not been heard from. The presumption of his death as a conseMany instances where this writ may be quence followed, and no evidence was offered invoked are cited in Cross v. Gould, supra, to rebut this presumption. The trier of the and among them are: Where judgment had facts therefore found this issue in favor of been given against an insane person as plaintiff; and upon the discovery by the though sane, it was held to be such an error court that a grave error of finding of fact of fact not appearing on the record as essenhad been made, the judgment, while yet tially invalidating the proceedings, the judg- in the breast of the court, was set aside. ment was set aside on writ of error coram The manner of calling the court's attention nobis. Heard v. Sack, 81 Mo. 610; Adler v. to this error we consider not material. Had State, 35 Ark. 517, 37 Am. Rep. 48. Where the learned judge of the trial court made the defendant dies after service of process, the discovery that Warren was alive during and before judgment, the writ of error coram the term, it would have been his duty to set nobis is the proper remedy to set aside the aside the judgment. Section 2022, R. S. judgment, for the reason it is an error of 1909, provides that: fact not appearing on the record which renders the judgment invalid. Calloway v. Nifong, 1 Mo. 223; Dugan v. Scott, 37 Mo. App. 663. Where it appeared affirmatively by the sheriff's return one defendant was not served, and through error counsel representing the other defendants answered as though they also represented the one not served, it was held that a writ of error coram nobis filed at a subsequent term was a proper remedy to set the judgment aside. Craig v. Smith, 65 Mo. 536; Warren v. Lusk, 16 Mo. 102. Other instances may be found by reference to Cross v. Gould, supra, but enough here are given to show the character of facts to which the writ of error coram nobis goes.

[1] From the above learned elucidation upon the writ of error coram nobis by Judge Nortoni, in the light of the facts of the instant case, it clearly appears that the motion filed to set aside the judgment in the case at bar is in no sense in the nature of a

"In every case where there has been a mistake or surprise of a party, his agent or attorney, or a misdirection of the jury by the court, or a mistake by the jury, or a finding contrary to the direction of the court, or a fraud or deceit practiced by one party on the other, has been committed by a witness. and is also or the court is satisfied that perjury or mistake satisfied that an improper verdict or finding was occasioned by any such matters, and that the [proper] party has a just cause of action or of defense, it shall, on motion of the proper party, grant a new trial, and, if necessary, permit the pleadings to be amended on such terms as may be just."

The action of the court in setting aside the judgment in the instant case is analogous in principle to the perjury or mistake clause of the statute quoted above. To illustrate: Suppose that, instead of relying on the presumption of death by absence, plaintiff had been relying upon proof of death in fact, and had introduced her evidence, proving by witnesses that Warren was dead, and that the issue of his death was so determined, and judgment rendered, and thereafter, and be