57 Mo. 154 | Mo. | 1874
delivered tbe opinion of the court.
The plaintiff instituted this proceeding in the circuit court for the purpose of setting aside a judgment obtained against liim by the defendant on constructive notice.
The petition charges, that the defendant had no valid claim against the' plaintiff, and that the judgment Avas procured wrongfully and fraudulently. On motion' a part of the petition was stricken out, and the defendant then filed her answer denying all the allegations therein.
The only evidence introduced by the plaintiff yas the record of the suit in AAdiich the judgment Avas sought to be set aside; by which it appeared, that the defendant, in November, 1S64, commenced her suit by attachment in the Polk circuit court upon a contract in writing made in 1861, and alleged to be in the possession or under the control of plaintiff or one Robinson, and not in the possession of defendant; and stated that said contract Avas signed by plaintiff and Robinson, stating that they had bought the distributive share or interest of the defendant, in the slaves belonging to the estate of her husband, R. E. Acock, deceased: that her share of said slaves was delivered to plaintiff and Robinson ; and they promised and agreed, in consideration thereof, to pay defendant for her iuterest the appraised value of the slaves less ten per cent. —one-lialf in promissory notes and the residue in real estate.
The appraised value of the slaves was SjcUjlOO, and,the defendant Avas entitled to one-sixth part of the same. It Avas also agreed that defendant might retain one slave valued at
With-the petition were filed an affidavit and bond for an at-attachmeut in clue form, and a writ was issued which was levied on certain lands belonging to plaintiff. Publication was regularly made and proved. The writ was returnable to the March term, 1885, at which term no answer being filed, an interlocutory judgment was taken. Jit an adjourned term of the next regular court, on the lltli day of December, 1865, a final and special judgment was rendered in favor of defendant for $1,845 debt and $513.51 damages, and in conformity therewith, a special execution was issued, and the land sold and purchased by one Eno, to whom a deed was made. On the 2Sth day of November, 1868, this petition was filed by the plaintiff to set aside the judgment.
The petition in this case does not proceed under the provisions of the statute in reference to setting aside judgments in attachment proceedings, rendered on publication only, for that requires that'the proceeding should be instituted within two years — which was not clone here. (1 Wagn. Stat., § 60, p. 193, et seq.) It is then, simply a petition to avoid the judgment for fraud or irregularity.
The principal ground insisted upon now, is, that the petition in the attachment suit was founded on a written contract for defendant’s share of- the slaves, which was valued at $2,850, and that the affidavit stated the demand to be justly due, after allowing credits and off-sets, amounting to $1,845 and interest, and that the judgment was for the latter sum and damages. Now the interest of the slaves, was valued at' $2,850, as stated, but as the defendant kept one at $800, and then deducted ten per eept., it would just leave $1,845, the amount sworn to in the Affidavit. ’ ■
The damages,which it is claimed were not asked for in the petition and not spoken of in the order of publication, were nothing more than the interest on the demand which was directly asked for. This is the usual manner of writing up judgments.
The plaintiff introduced no evidence whatever, to sustain his allegation of fraud; but the defendant did what was not necessary, she again introduced her evidénce, and proved up her case clearly and satisfactorily,. The court therefore committed no error in- deciding in her favor.
The.action of the court in striking out a part of the plaintiff’s petition we will not review. It was not embodied as one of the errors, or points insisted upon in the motion for a new trial, and therefore must be disregarded. (Curtis vs. Curtis, 51 Mo., 351, and cases cited.)
Moreover, it does not appear, that i.n consequence of that ruling, the plaintiff was deprived of any evidence he possessed. Under the allegations of fraud which remained, he might have introduced any witness, lie had on the subject, but, he seems to have had none. He relied wholly on the record in the former suit and that was palpably insufficient to sustain him.
Judgment affirmed;
