Plаintiff asked for an injunction restraining the enforcement of an execution issued upon a judgment rendered in the circuit court of Scоtt county on the twenty-third of October, 1891, in the case of F. M. Forbes v. A. C. Davis, pending in that court upon appeal from a justice.
The cаuses alleged for injunction are that said judgment was dismissed in said circuit court for failure of the plaintiff therein to prosecute his appeal; that one Stubblefield, who, prior to such dismissal, had represented that he was not an enrolled attorney and had nothing further to do in the matter, procured himself to be enrolled, entered a special appearance for plaintiff in said cаse, and, without notice to defendant therein, moved said court to set aside its order of dismissal, which was accordingly done; and that thеreupon the cause was reinstated upon the docket and without further notice to defendant therein called for trial, whereon judgment was rendered against defendant for costs.
Upon the hearing of this motion plaintiff testified that he attended the circuit court of Scott county on October 21, 1891, at which time the case against him in said court was set for trial; thаt, when it was called, it was dismissed for failure of the plaintiff therein to prosecute his suit.
Plaintiff further testifies that on his way from the depot to thе court room he met defendant Stubble-field, who had represented the opposite party in the justice’s court, and that said Stubblefield told plaintiff that he, Stubblefield, would not have anything further to do with the case, as he was not an enrolled attorney. After the dismissal of said сase plaintiff left immediately for his home in St. Louis, and heard nothing further until he was informed by the sheriff of Scott county, defendant Mont Wade, that he held an execution for costs against plaintiff.
The records of the circuit court of Scott county, show that defendant Stubblefield was enrolled as an attorney of that court on October 21, 1891; that upon his motion the judgment of dismissal in said cause was set aside on October 28, 1891, and was thereafter called for trial and judgment rendered against plaintiff for costs.
Plaintiff also testified that he had no noticе of this motion, or the subsequent trial; that he had paid to one Nevins $45 in full settlement of the cause of action on which said suit was brought; that said Nevins was the assignee of Forbes, the plaintiff in this suit, and on the payment aforesaid turned over to plaintiff the written assignment made to him, Nеvins, by Forbes.
Witness Stubblefield testified that, after his enroll
The trial court sustained the motion to dissolve the injunction herein, and assessed damages at $50, and overruled рlaintiff’s motion to amend his petition so as to charge that said judgment for costs against him was “obtained by fraud, perjury and deceit practiced upon the court.” Thereupon plaintiff’s suit was dismissed, from which judgment the present appeal is taken.
Plaintiff’s petition on its fаce disclosed no ground for the relief prayed. Among other things, it wholly omitted to charge fraud 'in the procurement of the judgment sought tо be enjoined; On this point the supreme court has said: “To authorize a court of equity to set aside the judgment of another court, it must аppear that there was fraud in procuring the judgment; an illegal allowance or error is insufficient.” Murphy v. DeFrance,
After an examination of the evidence adduced in the motion to dissolve, we can not say that the learned circuit judge committed any error in declining to permit the amendment. The evidence does not show that plaintiff secured from Nevins any release of the liability
Plaintiff testified that he knew nothing of the-intention of Stubblefield to file any motion in the-former cause. If an appeal had beеn taken therein from the judgment rendered at the same term after setting aside the dismissal, there is authority for the position that such judgment would hаve been reversed. Marsh v. Morse,
It is obvious, however, that such erroneous action of the trial court can not furnish a ground for a collateral attack upon its judgment, as is sought in this case. We do not think, therefore, that the amendment, if allowed, would have been sustained by the evidence, adduced. .
Appellant assigns for error the dismissal of his petition after judgment on the motion to dissolve and before a finаl hearing of the cause.
The statute permitting a motion to dissolve after answer and in term, whereon evidence in support of thе issues may be introduced, contemplates a trial, in limine, of the right to an injunction. R. S. 1889, section 5505. It does not, however, debar the plaintiff from a trial thereafter of the right to other relief. In cases, therefore, where the injunction is merely auxiliary to the cause of aсtion, the right to a subsequent trial of the latter can not be defeated by a hearing on the motion to dissolve.
The case at bar, however, does not belong to that, class. Here the injunction is the “life of the bill.” No ulterior relief is sought beyond a perpetual stay оf enforcement of the judgment against plaintiff. The
Nor can plaintiff complain in this proceeding of the hearing of the motion to reinstate said cause on the day of its filing. The statute on this subject is not of universal application. Curtis v. Curtis,
Finding no reversible error in the record, the judgment herein is affirmed.