McDonald v. Leewright

31 Mo. 29 | Mo. | 1860

Scott, Judge,

delivered the opinion of the court.

This was a suit for partition. The plaintiffs had been parties to a former suit in partition for the same lands. It appears that in the former suit they were duly served with process. This petition is brought for another partition, praying that the former one be set aside on the ground that the sheriff’s return in the first proceeding was false, they alleging that they never had been served with process, and never appeared. There was a demurrer to the petition, which was sustained.

In the case of Hallowell et al. v. Page, 24 Mo. 590, it was decided by this court that a sheriff’s return of process, regular on its face, is conclusive upon tlie parties to the suit; its truth can only be controverted in an action against the sheriff for a false return.

The other judges concurring,

the judgment will be affirmed.