58 Mo. 155 | Mo. | 1874
delivered the opinion of the court.
The plaintiff, "Wm. Randolph, alleged in his petition, in subtance, that Robert H. Sloan, the brother of the defendant, conveyed to the latter certain real estate, and that such conveyance was made with intent to hinder, delay and defraud creditors, etc.; that upon a judgment rendered in behalf of one Dunn against Robert H. Sloan, execution issued'and a sale of the laud thus conveyed took place; at which sale plaintiff became the purchaser, receiving a deed from the sheriff therefor, etc. The usual relief is then prayed for. The non-residence of the defendant having been alleged, publication was* made, returnable to the next July term. At that term judgment by default was entered; which was followed at the next February term, by final decree as prayed for. Six days after this disposition of the case, the defendant by his attorneys filed his motion verified by affidavit, to set aside the interlocutory and final decrees, alleging that he had a good defense to plaintiffs action, etc. etc.; that "defendant is, and was, at the time of suit brought, a non-resident, had no personal service, nor had he any actual notice of the suit until after the expiration of the previous term; that the names of Anderson & Boulware were entered as appearing at that term for defendant at the instance of Robert H. Sloan,
No error, however, has been perceived in those rulings. No authorized appearance of the defendant had ever been entered to the action, and consequently, he, under the circumstances mentioned in his affidavit, had three years after rendition of final judgment in which to file his petition for review. This being the case, and all the proceedings being in the breast of the court during the term in which final judgment was rendered, it was fully within its discretion ary powers to pursue the course of action which it adopted. (Sloan vs. Forse, 11 Mo., 85.)
Judgment affirmed;