46 Mo. 194 | Mo. | 1870
delivered the opinion of tne court.
•This suit presents another phase of the controversy involved in the proceedings before us in Bernecker v. Miller, 44 Mo. 102. It is a proceeding in equity to enjoin the judgment in ejectment then affirmed. The fraudulent conduct of Berneeker in obtaining the judgment in partition in the Court of Common Pleas, described in Bernecker v. Miller, 44 Mo. 102, and in purchasing the land, is set forth in the petition as the ground for equitable relief. We held, when that case was before us, that the judgment could not be impeached collaterally, and this is an attempt to
The answer denies these'allegations, but the evidence sustains them, and shows that the plaintiffs and some of the other heirs were wholly ignorant of wha-t was going on; that they did not know that they were served with process in the proceedings in the Common Pleas, or that there were any such proceedings, until after the sale, and authorized no one to appear for them; that the, land, at the time of the sale, was worth from $80 to $100 an acre J, that Wendelin Miller was very ignorant and illiterate, and he and his wife trusted Bernecker to manage their interests in the lands,
I have no doubt that enough is shown in this case to authorize a perpetual injunction, unless the plaintiffs are barred by some previous action or opportunity. But, unfortunately, it appears that after the heirs, including the present plaintiffs, had heard of this sale they then employed attorneys to apply to the court to set it aside, and accordingly a motion was filed and heard in said Court of Common Pleas stating many of the grounds set up in this petition and supported by affidavits, which, strange to say, was overruled. An appeal was taken to this court, and for want of an assignment of errors the action of the Common Pleas was affirmed. (32 Mo. 231.) Defendant, Bernecker, sets up this proceeding as a bar to any further investigation into his operations for transferring this estate. So far as that motion covers the equities' of this petición, the plaintiffs are concluded by its disposition, notwithstanding it urns never presented to the appellate court. That it -was not so presented was the fault of plaintiffs’ counsel at the time, from the effect of which equity has no power to relieve them. (Sto. Eq., § 895-6, and cases cited; Matson v. Field, 10 Mo. 100; Reed’s Adm’r v. Hansard, 37 Mo. 199.)
The great wrong which Bernecker has been enabled to practice upon the plaintiffs and the other heirs, has disposed us to give the most favorable consideration to their claims, both now and when they were before us in another form, as reported in 44 Mo. It did not appear in that record that this motion to set aside the sale was ever made, or that they made any other appearance in the Court of Common Pleas than what was indicated in the order of sale. But they actually did appear, and presented an application which ought to have been granted, and which doubtless would ultimately have prevailed had the matter been prosecuted in this court. That it was not so prosecuted was the fault of the attorney they selected, and after they had discovered the practices of Bernecker and were no longer deceived by him. The main facts set out in this petition were embodied in that motion, and
The judgment of the Circuit Court must be affirmed.