Carolus v. Koch, 72 Mo. 645

Carolus v. Koch

72 Mo. 645 | Mo. | 1880

Norton, J.

This is a suit brought in the circuit coux’t of Buchanan county to exxjoin defendant Sullivan from levying an executioxx upon'the propexfiy of plaintiff to satisfy a judgmexxt x’endered against plaintiff by a justice of the peace in favor of defendants Koch, Chew & West. In the circuit court defendants objected to the introductioxx of axx3r evidence on the ground that the petition did not state a cause of action. This objection was sustained, and judgment rendered for the defendants, and the only qxxestion presented for our determination is as to the sufficiency of the petition. The petition, after setting out a state of facts which would have constituted a complete axxd pex’fect defense in the suit before the justice of the peace, which resulted in the judgment on which the execution sought to be enjoined was issued, alleges that “ said facts first came to his knowledge since the rendition of the jridg*647merit and since the time allowed by law for an appeal.” In cases where, after judgment, defendant therein invokes the restraining powers of a court of chancery in matters which would have afforded a good defense at law, he must show by his bill that his failure to discover and avail himself of such defense is not attributable to any negligence or want of diligence on his part, but to fraud, accident or act of the opposite party. The mere allegation that he was ignorant of the facts constituting a defense, is not sufficient. Taliaferro v. Branch Bank, 23 Ala. 755. “When the facts existed before the trial at law, upon which relief in equity is claimed, and were known to the party suing ■ in equity, or might have been known or discovered by the exercise of diligence, and were as much a defense at law as in equity, no redress can ordinarily be obtained.” Story Eq., § 1572. “Relief wilTnot be granted by staying proceedings at law after a verdict, if the party applying has been guilty of laches as to the matter of .defense, or might have procured the requisite proof, before the trial, by reasonable diligence. Story Eq., § 895. So in the case of Ritter v. Democratic Press Co., 68 Mo. 458, the observations of Chancellor Kent in the case of Duncan v. Lyon, 3 John. Ch. 365, were approvingly quoted, where it is said : “ It is a settled principle that a party will not be aided after a trial at law unless he can impeach the justice of the verdict on grounds of which he could not have availed himself, or was prevented by fraud or accident, or the act of the opposite party, unmixed with negligence or fault on his part.”

The petition of plaintiff, tested by these principles, is insufficient. The judgment sought to be enjoined was obtained upon an accounting and settlement macle by the agent of plaintiff with defendants Koch, Chew & West, whereby a balance of $191.57 in favor of said Koch, Chew & West was found. This accounting is alleged to have been false and fraudulent. When suit was brought upon it before the justice, plaintiff was necessarily notified of the character of the demand, and common prudence and *648diligence required him to inquire of Ms own agent, by whom the settlement was made, as to its correctness and the basis on which it was made. It is not averred in the petition either that such inquiry was made, or that any other step was taken by plaintiff to inform himself of the true state of the account, or that he was prevented from doing so by the acts of defendant or from any other cause; nor is it averred that the books of account or bills of goods showing the transactions out of which the settlement grew were lost or destroyed, or not accessible to plaintiff when the cause was triable before the justice, the only allegation being that such books and bills of goods “are lost and destroyed,” which relates to the time of filing the bill, and not to the time when the cause was heard before the justice of the peace. It does not appear from any allegations in the petition that the facts therein set up as a ground for equitable interference were not accessible to plaintiff before the trial had’in the justice’s court. Judgment affirmed.

All concur.