34 Mo. 542 | Mo. | 1864
delivered the opinion of the court.
This is a suit upon the record of a judgment rendered by a court in Wisconsin, against the defendant, and in favor of one Keep, who assigned it to the plaintiffs.
When the case was called for trial, the defendant filed an affidavit in which he stated that the plaintiffs were both insolvent ; that an execution upon the judgment had been issued by the court in Wisconsin which had rendered the judgment, which execution had been levied upon lands of the defendant in Wisconsin (worth in ordinary times five thousand dollars), and the lands were advertised for sale under the execution, at a day then in the future.
For the reasons stated in the affidavit, the defendant moved for a continuance of the cause, and for leave to plead, in part satisfaction of the judgment, the payment of such sums of money as might be made upon said execution and
There was no error in this action of the court. The matters stated in the affidavit showed no present defence to the action, and it would have been improper to continue the cause to await the result of proceedings elsewhere, which might or might not so result as to entitle the defendant to a credit upon his indebtedness established by the judgment.
The defendant’s answer contained an averment that the judgment in Wisconsin was obtained by the fraud and covin of said Keep, and others in collusion with him.
To support that averment the defendant offered some testimony at the trial, which, upon objection by the plaintiffs, was ruled out by the court, and this ruling by the court is assigned for error. The testimony offered was the bill of exceptions showing the testimony given at the trial of the case in Wisconsin, and the depositions of witnesses to show that the facts were different from what they appeared to be by the bill of exceptions, and also to show that a witness whose testimony is contained in the bill of exceptions had made statements to defendant’s attorney different from and conflicting with those which he made' as a witness at the trial.
The judgment, of course, concludes the parties as to the matters in issue in the cause in which it was rendered, and it is only claimed that the testimony should have been admitted in evidence to establish that the judgment was obtained by fraud, and this supposed fact it does not tend to establish. It may well be that the judgment was rendered under a mistake as to the facts, and that a witness swore falsely (and it is impossible to know what credit was given to his testimony), but this does not tend to establish that the judgment was obtained by fraud. These facts may be entirely consistent with the most perfect good faith of the plaintiffs, and may indeed be the result of the negligence of the defendant himself in failing to produce testimony of the truth.
The testimony here offered was incompetent to establish that the judgment was procured by fraud, and was properly excluded.
The judgment is affirmed.
