Irvine v. Leyh
124 Mo. 361
Mo.
1894
Check Treatment
Black, P. J.

John Howell conveyed one hundred and three acres of land to the defendant, Ferdi*365nand Leyh, by a warranty deed dated the twenty-sixth of June, 1866. Howell died leaving an estate which was settled prior to 1873. At the last named date Leyh was dispossessed of a part of the land so purchased by him, so that a cause of action accrued in his favor on the broken covenants of warranty in the deed from John Howell to him. John Howell left five heirs, four of whom settled with Leyh for their respective shares of the damages arising from the breach of the covenants in their father’s deed. Nancy Irvine, the other heir of John Howell, died leaving the plaintiffs in this suit as her heirs. Leyh commenced a suit by attachment in 1875 against the plaintiffs in this suit, to recover one fifth of the damages he had sustained by the broken covenants before mentioned. The defendants in that case (plaintiffs in this one) were nonresidents and were duly and regularly notified by newspaper publication. Leyh obtained judgment in 1876, under which he purchased the land now in suit.

In 1885 the defendants in that case commenced this suit to set aside the judgment in the attachment suit and the sheriff’s deed based thereon. The trial court gave judgment for the plaintiffs, setting the former judgment and sheriff’s deed aside, which judgment was reversed and the cause remanded by this court. 102 Mo. 200. The cause was again tried, resulting in a judgment for the; defendant.Leyh, and the plaintiffs sued out this appeal.

After the first judgment was reversed and the cause remanded, the plaintiff filed an amended petition. It was alleged, among other things, in the first petition, that tbe defendant here appeared in his attachment suit and presented his petition to the court and falsely and fraudulently represented and stated that plaintiffs here (defendants there) were the owners of real and *366personal property, which they inherited from their mother, and that she inherited the same property from her father, John Howell. It was alleged in the amended petition in this case that defendant appeared in his attachment suit, and then and there, either knowingly and intentionally, for the purpose of defrauding these plaintiffs, “or while he was laboring under a gross mistake as to the facts in the premises,” falsely and erroneously and untruthfully represented that, etc. In other respects the pleadings are the same as they were when the case was here before; and there is no substantial difference in the evidence.

It appears now, as it did then, that the defendant in this case, the plaintiff in the attachment suit, instituted and prosecuted that suit in perfect good faith, believing he had a just demand against the present plaintiffs. It was said on the former appeal, and has been repeated in subsequent cases, that “the acts for which a court of equity will, on account of fraud, set aside or annul a judgment or decree, between the same parties, rendered by a court of competent jurisdiction, have relation to frauds, extrinsic or collateral to the matter tried by the first court, and not to a fraud in the matter on which the decree was founded.” All the averments of fraud, as well as the new averments of mistake on the part of Leyh, relate to matters on which the former judgment was founded, and not to any matter extrinsic or collateral to the issues that might have been raised in that case. It is obvious that the insertion of the averment as to mistake on the part of Leyh does not call for the application of any other rule than that before stated.

In the case of Hayden v. Hayden, 46 Cal. 333, the judgment sought to be set aside was rendered on publication of notice. The order for publication did not direct a copy of the complaint and summons to be sent *367to the defendants or any of them. This direction was omitted because the plaintiff had made and filed an affidavit that she did not know where the defendants resided, and, therefore,- did not know at what place a communication through the postal department would reach them; when, in truth, she knew where each and all of- them’ resided, and the affidavit was made and filed to prevent the defendants from getting actual notice of the suit. The case of Johnson v. Coleman, 23 Wis. 452, is, in its facts, to the same effect. In each of these cases fraudulent acts were resorted to for the purpose of having the process of the court served so as to avoid the actual notice contemplated by the law in those states, and thereby deprive the defendants of an opportunity to appear and dispute the averments of the complaint or petition. These cases are, therefore, wholly unlike the one now in hand; for here the order of publication was duly and properly and in good faith made after a non est return. There was no evasion of the law in procuring the order of publication. In contemplation of law the publication of the order in the attachment suit was notice to the defendants. Jones v. Driskill, 94 Mo. 191.

It is unnecessary to add anything more to what was said on the former appeal. The judgment is affirmed.

All concur.