21 Mo. 104 | Mo. | 1855
delivered the opinion of the court.
The questions in this case involve the propriety of the judgment of the court below in sustaining the demurrer of the defendants, all except Paschal Tourie, to the petitioners’ complaint, and also the setting aside of the judgment by default against Tourie, and the dismissing of the petition.
The petition does not set forth properly facts sufficient to maintain an action against the defendants who demurred to the same. The petition seeks to correct an error or mistake in the
The petition then states that the defendants, Wash and wife, Clay Taylor and Edmond Taylor, are in possession, by themselves or their tenants, of part of said land on the west end ; that Peter Lindell is in possession of part next east of them, and defendants, Page and Yandeventer, are in possession of the remainder of said tract, and are unlawfully withholding from the plaintiffs said possession.
The defendants, the school commissioners, are pretending, unjustly, to claim a part on the east end thereof. The plaintiffs state that they have an equitable title to said described tract of land, and pray judgment that Paschal Tourie shall convey the same to plaintiffs by deed in fee simple, or such judgment as shall invest them with the legal title to the same ; and such other judgment against him as shall be proper under the circumstances. Against the other defendants they pray judgment for possession, damages, rents and profits, and general relief.
1. This petition, which I have stated substantially above, shows no cause of action against any of the parties who demurred thereto.
It does not appear by this petition that any of these defendants claim under Paschal Tourie, the maker and grantor in the deed, in which is the alleged erroneous description of the land. Even if these defendants should claim under Paschal Tourie, the petition fails to allege that they had notice of such mistake,
2. But this court cannot perceive why the court below should suppose the judgment by default against Paschal Tourie was irregular, and should be set aside. The record shows personal service of the summons and petition in time, and it also shows the failure of the defendant, Tourie, to answer or demur. The judgment by default was regular, and the court should not have set the same aside and dismissed the petition, without any appearance or motion on the part of Tourie asking for such action.
The defendants, who demurred below, contend in this court that the judgment against Tourie was properly set aside, because it was had after the demurrer to the plaintiff’s petition had been sustained by the court below. There is nothing in this objection. The plaintiffs may well be entitled to relief against one defendant, and yet have no sufficient statement of facts in their petition to entitle them to relief against another defendant, or even an informal and defective statement may be considered sufficient, after default, to authorize the courts to afford the relief which might have been denied upon proper defence made.
In our opinion, then, the court below erred in setting aside the judgment by default taken in this case against Tourie, without his appearance, and showing cause therefor. That judgment is reversed, and the cause remanded for further proceedings against Paschal Tourie, if the plaintiffs see fit; and the judgment in favor of Page and the other defendants, who made de-fence below, is affirmed, the other judges concurring.