84 Mo. 129 | Mo. | 1884
This case was tried and determined in the special law and equity court of Jackson county, upon a demurrer to the -petition which was in the nature of a bill in equity to enjoin and restrain defendants from enforcing a certain judgment, obtained by them, before a justice of the peace, and asking further for an accounting and settlement between the parties. The demurrer was sustained, and the bill dismissed, and in due time and manner the complainant, Payne, brought the case here by writ of error.
It seems that in 1874, complainant, Payne, had a
In this state a proceeding in the nature of a bill in equity will lie to enjoin and avoid a domestic judgment obtained through fraud, and like remedies exist and may be resorted to against judgments obtained in other states, when sued on in this state. Freeman on Judg., sec. 561 : High on Inj. (2 Ed.) sec. 69. The fraud, however, for which a judgment will be enjoined must be in the procurement of the judgment. And courts of equity will not vacate or enjoin a judgment merely based upon a cause of action which may be vitiated by fraud, for this is a valid and meritorious defence, which may be interposed, and unless its interposition is prevented by fraud of an adversary, as was the case in Ward v. Quinlivin, 57 Mo. 426, it. cannot be asserted against a judgment,
We do not see that there was, on the facts alleged, any fraud, accident, or mistake in fact, inducing Payne to make his said answers, or that the O’Sheas were responsible for the rendition of the judgments, whether the same are to be held valid, or irregular and unauthorized, and not binding upon the complainant, or not. And, further, if the O’Sheas were not partners, and falsely assumed to be such in Kansas, for the alleged purpose, the effect of this was simply to affect their cause of action there with that vice. But this does not affect the judgment with fraud, which was obtained upon a trial where both parties were present by attorneys and where the contention between them, among other things, must have been over these facts. The O’Sheas, at least, did not by fraud, or otherwise, prevent a hearing upon these matters in the Kansas courts, nor is it so averred or claimed. The complainant had the benefit of his set-offs arising under said judgments in garnishments on the trial, in the justice’s court in Kansas, where they were allowed, but was deprived thereof by the ruling in the district court, where they were held inadmissible, against the partnership demands of the O’ Sheas. Even if this ruling were incorrect, it would furnish no ground for the interference of a court of equity as the remedy for'the improper exclusion of evidence or defences, is to correct the same on appeal, which was not done by complainant. The same set-offs, etc., were again offered in evidence and excluded by the justice of the peace in Missouri in the suit on the Kansas judgment. The rule prevails in this state, that individual debts cannot be set-off against partnership accounts and demands, and we would now be. compelled to so hold, if the cause were
It is further contended by appellant, that the action of Allen, the justice in Missouri, in excluding the evidence offered to show the want of jurisdiction, and to contradict the Kansas judgment, was inequitable and improper. When a foreign judgment is sued on in this state, it is true the question of jurisdiction may be open to inquiry, in some instances and for some purposes. It has been held, for example, that a'recital of appearance therein may be contradicted, by showing the appearance was by an unauthorized attorney, and this is the ground upon which the decision in Lager ». Stover, 59-Mo. 87, was placed. In the case before us, however, the fact of defendants’ appearance by attorney is not disputed, nor is it averred that said attorney was not authorized.to appear and defend the action in complainant’s behalf. That complainant was a non-resident of Kansas is immaterial, if he authorized said attorney to appear for him, for in that event he would be bound by a judgment otherwise properly rendered against him. The O’ Sheas, although citizens of Missouri, as alleged, could institute in person or by attorney, proceedings by attachment in the foreign jurisdiction where they found property of their debtor, and they would, also, become liable for any judgment against them therein. The allegations in the bill that complainant was never served with summons or process is, also, immaterial, and for a similar reason, because it is clear, as we think, that complainant has sub
It is, also, further contended that, as plaintiff was, never served with summons or other legal process, the judgment of the Kansas district court, on appeal from the justice’s court in the attachment suit, being a general one instead of one in rem, was unauthorized and void. Both in Kansas and Missouri proceedings in the nature of judgments in rem do not generally create any personal liability, but operate on the property attached, and are not generally considered to constitute, at least beyond the state where rendered, a cause of action against the defendant therein. Freeman on Judg., sec. 436; Kane v. Kook, 8 Cal. 449; Banta v. Wood, 32 Iowa 473. The doctrine is maintained in cases where there is no summons and no personal appearance by the parties, and where the jurisdiction acquired has been wholly obtained by the constructive service of the attachment. Apart from the jurisdictional inquiries, the question before us as to the Kansas judgment is, what is its effect in Kansas, for this is the effect to which, under the constitution of the Union, it is entitled in this state. If valid there, it is valid here, aside, at least, from questions of fraud in its procurement, and it is void here, or merely irregular and voidable here, as it may be the one or the obher in that state. In the case now under consideration, we do not understand that the seizure of the property in the attachment is used as a service of process on the defendant, so as to authorize a personal judgment in said cause; but, that said judgment, if otherwise not invalid, is based in that behalf upon the jurisdiction acquired by the voluntary appearance of the defendant therein.
The Kansas judgment set out in .plaintiff’s bill is a general one for the recovery of $105, the amount of the verdict and for costs, upon which execution therefor is ordered to issue. Such a judgment is, we think, not
As to the matters alleged, as to the defendant, Boothe, and the levies made by him as constable, it may be proper and sufficient for us to say that, while such officers may generally exercise their judgment and discretion as to the sufficiency of their levies, yet they may be held liable upon their bond, or otherwise, for unfairness and unreasonable excess, as well as for any other oppressive conduct or abuse of power. In this case, the property seized by the officer was retained by the defendant under a forthcoming bond, and while the amount of property, if we accept its value as alleged, seems large, we presume only enough is intended to be sold to satisfy the execution, and for any wrongful or oppressive acts in this particular plaintiff is not without adequate remedy at law. Some of the matters complained of are not harmful or prejudicial to the defendants, such as, the levy on property or interests not belonging to the defendants. If the officer has seized on property not subject to such executions, this affects the validity of said levy as to such property only.
Upon consideration of the whole case, we are not prepared to say that the trial court erred in sustaining-said demurrer and dismissing the bill, and its judgment is, therefore, affirmed.