Reiger v. Mullins

210 Mo. 563 | Mo. | 1908

BURGESS, J. —

The petition in this case alleges,, in substance, that the defendant Mullins, though in possession of certain lands and with knowledge that plaintiff made no claim to it, fraudulently brought ejectment against plaintiff and took judgment for possession and three hundred and fifty dollars damages, and is about to sell other land actually belonging to plaintiff to satisfy the judgment; that plaintiff was never served with process in the' original suit and that the sheriff’s return of service was false. The petition further alleges: “That all the proceedings in said case, after the filing of the petition, were .and are a fraud upon your Honor’s court and a fraud upon plaintiff, and contrary to good conscience ■ and good faith; that at all times mentioned in the petition, the defendant herein, John R. Mullins, was, by his tenant, one Howard Davidson, in possession of the property described in said petition, and that said petition was not filed in good faith, but was devised as a means of getting money from this plaintiff and that this plaintiff at no time had any notice of said proceedings, and at no time had or claimed any right or title in the property, and at no time was in possession of the same, and that all of these facts were well known to defendant John R. Mullins, or might have been discovered by him by inquiry from this plaintiff; and that plaintiff is without remedy at law, but can only obtain relief by a court of equity.”

The petition concludes with a prayer for an injunction against Mullins and the defendant .sheriff to restrain the sale, for the vacation of the judgment, and for equitable relief.

Attached to the petition were affidavits tending to sustain the allegations therein contained.

The defendant Mullins filed answer, denying all allegations in the petition.

When the case came on for trial, the defendant objected to the introduction of any testimony under the petition upon the ground that the petition failed to .•state a cause of action in that the sheriff’s return was conclusive, and that plaintiff had an adequate remedy at law. The objection was sustained by the court, and plaintiff at the time duly excepted. In due time plaintiff filed motion for a new- trial, which was overruled, to which ruling he saved an exception, and appeals.

It is conceded by plaintiff that if the case of Smoot v. Judd, 184 Mo. 508, is to be followed as decisive of the case at bar, the trial court was right, because this case falls within the principle there decided, except as distinguished in his brief upon the question of fraud; but it is insisted that that decision is hot in line with the weight of authority, and should be reconsidered and overruled. That ease was well considered, and met with the approval of the entire Court In Banc, with one exception. We see no reason whatever for reconsidering or overruling it, and must, with due respect to counsel for plaintiff, decline to so do.

The judgment should be affirmed. It is so ordered.

All concur.