Lindell v. President of the Bank of Missouri

4 Mo. 228 | Mo. | 1835

■ Opinion of the court delivered by

McGirk J.^*

This was a proceeding against the Bank under the 27 th, section of the act of incorporation, which provides, that if the notes of the Bank, are presented to the Bank for specie payment and refused, that in addition to the ount of said notes, the bank shall forfeit, and pay five per-centum per month, whilst such payment is withheld, which shall be recovered by motion in a summary way. Lindell gave notice to the bank, that he held the notes and that he should make the motion. In the year 1825, at the November term of the circuit court for the county of St. Louis, Lindell recovered against the bank, the sum $8QQ, the amount of the notes, together with the sum of 5 per centum per month, till paid. The record states, that the plaintiff Lindell, as well as the bank, appeared b). their attorneys, and the trial was had, and judgment given. On this judgment, two writs of scire facias issued to revive the same, and some other proceedings were had. In 1833, the bank moved to set the original judgment aside, on the ground, that there was no notice or lawful process served on the bank, either as regards the scire facias or the original motion and judgment. Whereon, Henry VonPhul and some other person made affidavits, that when the original notice was served on T. P. Riddick, he wras not President, and that then there were no regular officers of the bank. On this testimony, the court set aside the judgment and all subsequent proceedings thereon. To reverse this judgment ol setting aside the original judgment, Ha-dell brings his writ of error, and shows to the court here a notice of the writ of error served on Josiah Spalding, attorney of record in the court below, in the case where the original judgment was set aside. The only question to be considered, is, whether the court could contrary to the record, receive proof that the parties were not rightfully in couit, when Lindell’s judgment was rendered against the bank. The record says the bank appeared by attorney. This must stand as trad, at all events it cannot' be contradicted by affidavit- If this were allowed, then every judgment rendered in a court of record, would at all times be subject to the same proceeding, no property would be safe, the sanctity of a record would be lost, and with it, all security for right. It may be, if the attorney who appeared for the bank, did so by mistake, this mistake if discovered, might be corrected during the term, but hardly afterwards. The judgment of the circuit coui't is reversed with costs.

* Judge Wash did not sit in this case, having been counsel for Lin-del) in the court be low.