139 Mo. App. 56 | Mo. Ct. App. | 1909
This appeal is from a ruling of the circuit court on a motion to set aside a judgment and recall an execution. It appears plaintiff instituted his suit against defendant in the justice of the peace court of the city of St. Louis. The defendant was personally served by writ of summons and appeared to the action.
The other ground brought forward in the motion to set aside the judgment is to the effect that the plaintiff in the case fraudulently represented to the justice that defendant was in fact a non-resident of the city of St. Louis and thus procured the justice to issue notices and proceeded against him as though he were in fact a nonresident. This ground, of course, asserts fraud on the part of plaintiff in the act of procuring the judgment and is a competent ground upon which a court may set aside a judgment thus procured, on motion. [Downing v. Still, 43 Mo. 309; Cross v. Gould, 131 Mo. App. 585, 110 S. W. 672.] And it may be on the authorities cited that the court erred in sustaining plaintiff’s paper which he denominated a demurrer, challenging the sufficiency of these grounds for relief. A demurrer is a pleading under our law and of course a pleading of this character will not lie to challenge the sufficiency of a mere motion. Nevertheless the paper interposed in this instance was so denominated and on the challenge therein contained, the court declared as a matter of law that the grounds asserted in plaintiff’s motion to set aside the judgment were insufficient.
However all of this may be, and whatever the paper was by which the plaintiff challenged the sufficiency of this motion to set aside the judgment, the motion itself
The judgment will be affirmed. It is so ordered.