64 Mo. 588 | Mo. | 1877
delivered the opinion of the court.
Motion to set aside, on the ground of fraud, a sale under execution ; evidence conflicting ; no declarations of law asked and motion overruled.
Repeated decisions of this court have established, if frequent adjudication has that effect, that in law cases we will not weigh the evidence. (Garneau vs. Herthel, 15 Mo. 191; Irwin vs. Riddlesbarger, 29 Mo. 340; Wielandy vs. Lemuel, 47 Mo. 322; Cape Girardeau Mill Co. vs. Bruihl, 51 Mo. 144; Twiss vs. Hopkins, 50 Mo. 398; Doering vs. Saum, 56 Mo. 479; Beattie vs. Hill, 60 Mo. 72; Sangman vs. Hersey, 43 Mo. 122; Blankenship vs. N. M. R. R. Co., 48 Mo. 376.)
There is therefore, in this case, nothing for us to review. It seems to be thought that, because the motion charges fraud, this brings the case on the “ equity side ” of the court, and authorizes a review by us of the evidence. This position is untenable. If you may come on the equity side of the court with one motion, you may with another ; and thus gain an undue advantage over your adversary, who would be unable to tender a formal and specific denial to the matter of the motion, and thus indirectly overthrow the prescribed method of pleading.. Equitable aid must be sought in the usual way and cannot be obtained by motion: (Hull vs. Sherwood, 59 Mo. 172; Phillips, Nimick &
In Wooten vs. Hinkle (20 Mo. 290), there was a special finding of facts, and the law was declared. This afforded opportunity to review the finding, as the finding of the facts was in the nature of a special verdict (Wielandy vs. Lemuel, 47 Mo. 822), or an agreed state of facts, and afforded something which this court could review, and this although the law was not declared. (Stone vs. Corbett, 20 Mo. 350.) In Neal vs. Stone (20 Mo. 294), the evidence was examined on the mbtion to set aside the sale, but in neither of the two cases just cited was the point, whether this court would weigh evidence in law cases, passed upon or considered.
Although the distinctions in the mere matter’ of forms, of pleading, has long since been broken down by the code, yet the distinctive and salient characteristics of the two systems, law and equity, still remain as well pronounced as before. (State vs. St. Louis Circuit Court, 41 Mo. 574.)
As to the inadequacy of the price realized at the sale, even could we look into the evidence, this would afford no ground for setting aside the sale, unless the inadequacy were so great as to shock the moral sense. (Harm. & St. Joe. R. R. Co. vs. Brown, 43 Mo. 294; Stoffel vs. Schroeder, 62 Mo. 147.)
For the foregoing reasons, and without passing on the merits of the case, which, under the circumstances, we must decline to do, we shall affirm the judgment;
