29 Mo. 343 | Mo. | 1860
delivered the opinion of the court.
Defendant in error sued plaintiff in error in ejectment, in which there was personal service on the defendant, and judgment by default rendered at the November term, 1857, which was made final at the next regular term thereafter. On the same day plaintiff in error filed his motion to set aside the judgment by default and for leave to file an answer, which was overruled. The motion was based on an alleged mistake or misunderstanding of counsel, to whom plaintiff in error had spoken, and who failed to file an answer. The motion was not supported by affidavit. At the April term, 1858, the judgment having been made final, on the 8th of September, 1859, plaintiff in error filed in the clerk’s office of said court a petition asking the court to set aside the judgment by default and the final judgment, and to permit him to answer said petition. At the next term, November, 1859, the defendant in error filed his answer denying that plaintiff was entitled to the relief sought by his petition. This answer, on motion of the plaintiff in error, was stricken out. The petition for a review was then overruled, and the court refused to set aside the judgment, to which opinion of the court exceptions were saved, and the cause is before us on a writ of error.
The petition for a review is based upon the following grounds : First, that the petitioner never appeared to the action, nor was he made a party as the representative of one who did appear to the action; second, he was guilty of no negligence in not appearing to said suit, and that since the final judgment was rendered he has obtained the patent from the United States to the land in controversy; that he was the legal owner of the land; and that he had a good defence to the action. This was not a case for the proceeding by a petition for review, and the plaintiff in error misconceived his remedy in resorting to it. A petition for re
The judgment is affirmed;