49 Mo. 162 | Mo. | 1871
delivered the opinion of the court.
This is a suit in equity, brought to set aside the judgment and proceedings in a partition suit to which the plaintiffs were not parties. The plaintiffs, however, claim to hold an individual interest in the lands embraced in the partition suit, and allege that the proceedings and judgment therein were fraudulent and void, and on that ground seek to have them set aside and held for naught. That seems to be the substance and result of the petition, although it is greatly overloaded with irrelevant and superfluous matter.
The Circuit Court sustained a demurrer to the petition, and we are asked to review its action in that respect. It has not been
It is, moreover, claimed, and the plaintiffs’ counsel have asserted the proposition in their brief, that the judgment and proceedings in question were not only voidable, but absolutely and “utterly void.” Why, then, come into a court of equity to set them aside? If the proceedings were not only voidable, but. “ utterly void,” the judgment therein rendered cannot seriously embarrass the plaintiffs in asserting their rights in any appropriate suit, or cloud their title. But the effect of the proceedings, however valid, did not extend beyond the parties to the litigation. The rights of the plaintiffs, they not being parties, were not compromised by the judgment therein rendered. That judgment is no bar to any suit they may bring to vindicate their supposed property interests, nor can it be an impediment in their way in the prosecution of such suit.
It is not perceived that the court erred in sustaining the demurrer. The court permitted the filing of the demurrer after the time originally fixed for pleading had elapsed. That was a matter within the discretion of the court, and its discretion in that respect does not appear to have been unsoundly exercised. If the petition stated no cause of action it would be folly to subject the parties to the expense of procuring evidence.
The judgment will be affirmed.
