ON RESPONDENTS' MOTION FOR REHEARING. Respondents filed a motion for rehearing earnestly insisting that our opinion reversing the judgment of the trial court and directing a judgment in favor of plaintiff, appellant, should be set aside. It is not often that this court answers contentions made in a motion for rehearing when we are satisfied that the opinion is correct. We do so in this case solely because attorneys for Minnie *Page 1065 Sharp seem to feel that their client has not had her day in court. It is insisted that the case was tried in the circuit court solely on the theory of whether the judgment in the probate court, obtained by respondent Minnie Sharp, could be collaterally attacked, and that Minnie Sharp introduced no evidence on the question of whether there was collusion between her and her co-defendant, Carl Shepard, in procuring the judgment in the probate court.
We do not agree. Plaintiff's petition, as stated in the original opinion, was a direct attack upon the judgment of the probate court on the ground that it had been procured by collusion for the purpose of defeating a judgment plaintiff had obtained against Carl Shepard for alimony and maintenance of a minor child. That was the charge in the petition. The answer filed contained, among other matters, a general denial, thus placing in issue the question of collusion and fraud. We pointed out in the opinion that Minnie Sharp, in her deposition introduced by plaintiff, admitted that the judgment in the probate court in her favor was procured for the purpose of defeating plaintiff's judgment against Carl Shepard. Plaintiff, therefore, did try the case upon the theory of collusion and fraud and supported the charge by evidence. It was not plaintiff's fault that defendants relied on a point of law and did not introduce evidence. Defendants announced that they had no evidence to offer. Now they ask this court to remand the case and order it retried. That would mean, as said by this court en banc in the case cited in the motion for rehearing, [477] Walther v. Null, 134 S.W. 993, 233 Mo. 104, giving the defendant her day in court twice when she was entitled to her day in court only once. See 134 S.W. 993, l.c. 995, where the court said:
". . . a legal controversy should be set at rest once for all — in one suit, with one day in court, not two."
That language applies to Minnie Sharp in this case. In that case the court also held that a judgment may be set aside by a "direct attack by a bill in equity, charging facts constituting fraud in the very concoction of the judgment itself;" That is just what plaintiff did in this case. Minnie Sharp has had her day in court. She was charged with fraud and collusion in aiding Shepard to defeat a judgment against him in favor of his former wife. She denied the charge in her answer, but as her sole defense relied upon her theory that the petition constituted a collateral attack. Note, and we repeat the statement made by defendants' counsel at the close of the case:
"We are standing pat on the motion, we are not going to introduce any evidence. It is a law question."
The motion to dismiss relied on filled the function of a demurrer and the announcement that no evidence would be introduced amounted to a submission of the case on plaintiff's evidence. In view of the evidence given in the deposition by Minnie Sharp the defendants' *Page 1066 counsel should not be censored for taking this course. In the circumstances we are not justified in remanding the case for retrial. As to a demurrer to plaintiff's evidence in equity cases the rule is stated in 30 C.J.S. 972, sec. 579, as follows:
"Dismissing a bill at the close of plaintiff's case, before defendant presents or rests his case, is not correct practice in equity, in the absence of express provisions to the contrary. The case being set down for hearing on the bill, answer and proof, if defendant is willing to risk his case on plaintiff's proof or rather the failure of plaintiff to prove his case, he should submit the case to the court for final hearing, and if he is not so satisfied, he should present what proof he desires or may be able to present."
We have not overlooked such cases as Leeper v. Bates,85 Mo. 224, and Healey v. Simpson, 113 Mo. 340, 20 S.W. 881, where equity cases were remanded for retrial. The cases had been submitted on plaintiff's evidence. In those cases the defendants had interposed demurrers which the trial court had sustained. A questionable practice in equity cases. Troll v. Spencer et al.,238 Mo. 81, 141 S.W. 855, l.c. 858 (4). In the cases of Connecticut Mut. Life Ins. Co. v. Smith, 117 Mo. 261, 22 S.W. 623, l.c. 633, and Howard v. Zweigart, 197 S.W. 46, l.c. 49 (3), defendants were charged with fraud but did not testify. This court in each case reversed the judgment for the defendants and ordered the trial court to enter judgment for the plaintiffs. While this court has the authority at its discretion to remand equity cases for retrial, when it is satisfied that the parties may have other evidence to offer, it is not mandatory. First Nat. Bank of Monett v. Vogt, 344 Mo. 284, 126 S.W.2d 199, and cases cited supra. In the case before us we deem such action not justified.
[8] In the motion for rehearing it is also asserted:
"That the Court in its opinion, by reversing and remanding the cause without re-trial, entirely overlooked the propositions that have arisen since the trial and while the matter was pending in this Court, which must of necessity be taken into consideration in order to arrive at a just verdict between the parties in this, to-wit: That since the trial, the party, Carl A. Shepard has paid on said judgment, and the appellant has accepted on said judgment, several hundred dollars in money, notwithstanding the fact that the said judgment was satisfied by the alleged sale of the property in question in this action, . . ."
This court did not overlook the matters above set forth because they were not in the record to be overlooked and we were and are now entirely ignorant of whether those events transpired. When a case has been tried and an appeal taken from the judgment, the record of the case as made in the trial court is not a loose-leaf ledger so as to permit insertion of matters subsequently transpiring, but the record constitutes a closed book binding on the parties to the suit. If, as is alleged, *Page 1067 Carl Shepard paid his former wife any money on the judgment she obtained in the divorce case after the present case was tried, this court, off the record, may commend him for paying his just debts, but cannot and is not permitted to take such fact into consideration in determining this case. Neither do we know, as alleged in the motion, that [478] the judgment was satisfied by virtue of the sale under plaintiff's execution. If the proceeds of the sale were sufficient then of course it was satisfied, otherwise not. The motion for rehearing is overruled.