51 Mo. App. 328 | Mo. Ct. App. | 1892
This is a proceeding in equity to enjoin the levying of an execution issued under a judgment rendered by a justice of the peace, and to set aside such judgment. The plaintiff in the execution, and the constable to whom it was directed, are made parties defendants. A general demurrer to the-bill was filed, which the court sustained. The plaintiffs refused to
The petition stated in substance that, on the first ■day of June, 1891, the defendant Voeleker instituted a suit of replevin before a justice of the peace to recover from the plaintiff Sanderson the possession of certain ■cows, and damages for their detention; that Voeleker ■claimed to be entitled to the possession of the cows by virtue of a chattel mortgage, alleged to have been executed and delivered to him by one Milward; that, on the second day of June, 1891, the plaintiff Sanderson was served with process in said suit, and was therein required to appear before said justice on the thirteenth day of June,' to answer the complaint, and that on the said second day of June the plaintiff Sanderson retained possession of the property by giving to Dolan, the constable, a forthcoming bond with his coplaintiff, Shea, as his surety. The petition then proceeds as follows: “Plaintiffs state that neither said Milward nor said Voeleker had any claim to said property or to the possession thereof at the time said suit was brought, but said property was then and there the absolute property of this plaintiff Sanderson, free from all just and lawful claims of any person whatever, and that after the filing of said complaint, and prior to the thirteenth day of June, 1891, plaintiff, E. C. Sanderson, so represented to said Voeleker, and offered to satisfy said Voeleker of those facts if some time were given him to do so, and that thereupon, and to enable plaintiff Sanderson to so satisfy said Voeleker, and to prevent the continuance of said litigation, and to make an amicable settlement of same, it was then and there agreed by and between this plaintiff and said Voeleker, acting then and there by their duly authorized attorneys and agents, that said suit should not be tried on said thirteenth day
Among the grounds of equitable jurisdiction is relief against frauds in verdicts, judgments, decrees and other judicial proceedings. 1 Story on Equity Jurisprudence, sec. 252. This principle has been recognized by the supreme court in the case of Bresnehan v. Price, 57 Mo. 422. The court speaking through Judge Wag-nek said: “Nothing is better settled than that where, by mistake or fraud, a party has gained an unfair advantage in proceedings in courts of law, which must operate to make that court an instrument of injustice, courts of equity will interfere and restrain
If it could be said that the plaintiff Sanderson was negligent in any respect, it was in placing reliance on the oral statements of Voelcker’s attorney, and in neglecting to look after the case until the time for taking the appeal had expired. We find no authority to support the statement of counsel that such agreements, as are set forth in the bill, must be in writing, and made a matter of record in the court where the suit is pending. But on the contrary, in the case of Kent v. Ricards, 3 Md. Ch. Rep. 392, the complainant relied on the oral promises and assurances of the defendant’s attorney, that the judgment should not be taken until it was ascertained that certain demands, which had been assigned to them, were insufficient to pay off the claim sued on. After these promises were broken (by entering judgment against the complainant), the defendant’s attorney again promised that the judgment should not be enforced, but that he would proceed to collect the assigned accounts. The complainant relied on these promises which were disregarded, and the court held that no negligence could be imputed to him for so doing. The enforcement of the judgment was enjoined.
In the case of Hentig v. Sweet, 27 Kan. 172, Sweet had made payments on the note in suit, which had not been credited. Hentig promised Sweet that he would enter the proper credits, and take judgment
We think it very clear, both on principle and authority, that Sanderson had a right to rely on the promise of Yoelcker’s attorney that the replevin suit would not be tried on the day it was set for trial, and we also think that negligence cannot be imputed to Sanderson for failure to make inquiries about the case in time to have taken an appeal, in view of the allegations in the bill that it was understood that Sandersón should not attend on the day set for the trial of the case; that the case should be continued to some future time; and that the attorney was to notify Sander-son of the re-setting. In addition to these averments the bill set forth facts sufficient, if true, to make out a complete defense to the replevin suit. If Sanderson was prevented from making this defense by the fraudulent promises and representations of the defendant’s attorney, and was prevented from taking an appeal by like promises, we can conceive of no good reason why the case would not be heard on its merits, and full relief granted to the plaintiffs, if they should succeed in establishing the allegations of their bill by satisfactory-proof.
We do not think that it was necessary to aver that Yoelcker was insolvent. Such an averment would only have tendered an immaterial issue. If the judgment was fraudulently obtained, and Sanderson had a good defense in the replevin suit and was prevented from
The judgment of the circuit court will be reversed and the cause remanded.