Acock v. Acock

• Decision Date: 31 July 1874
• Citation: Acock v. Acock, 57 Mo. 154 (Mo. 1874)
• Parties: BENJ. F. ACOCK, Plaintiff in Error, v. LUCY A. ACOCK, Defendant in Error.
• Court: Missouri Supreme Court

57 Mo. 154

BENJ. F. ACOCK, Plaintiff in Error,

v.LUCY A. ACOCK, Defendant in Error.

Supreme Court of Missouri.

July Term, 1874.

Error to Polk Circuit Court.

Wright & Abbe and Johnson, for Plaintiff in Error.

McAfee & Phelps, for Defendant in Error.

WAGNER, Judge, delivered the opinion of the court.

The plaintiff instituted this proceeding in the circuit court for the purpose of setting aside a judgment obtained against him by the defendant on constructive notice.

The petition charges, that the defendant had no valid claim against the plaintiff, and that the judgment was procured wrongfully and fraudulently.On motion a part of the petition was stricken out, and the defendant then filed her answer denying all the allegations therein.

The only evidence introduced by the plaintiff was the record of the suit in which the judgment was sought to be set aside; by which it appeared, that the defendant, in November, 1864, commenced her suit by attachment in the Polk circuit court upon a contract in writing made in 1861, and alleged to be in the possession or under the control of plaintiff or one Robinson, and not in the possession of defendant; and stated that said contract was signed by plaintiff and Robinson, stating that they had bought the distributive share or interest of the defendant, in the slaves belonging to the estate of her husband, R. E. Acock, deceased; that her share of said slaves was delivered to plaintiff and Robinson; and they promised and agreed, in consideration thereof, to pay defendant for her interest the appraised value of the slaves less ten per cent.--one-half in promissory notes and the residue in real estate.

The appraised value of the slaves was $17,100, and the defendant was entitled to one-sixth part of the same.It was also agreed that defendant might retain one slave valued at $800; and it was then alleged that defendant and Robinson failed and refused to comply with their agreement.

With the petition were filed an affidavit and bond for an at-attachment in due form, and a writ was issued which was levied on certain lands belonging to plaintiff.Publication was regularly made and proved.The writ was returnable to the March term, 1865, at which term no answer being filed, an interlocutory judgment was taken.At an adjourned term of the next regular court, on the 11th day of December, 1865, a final and special judgment was rendered in favor of defendant for $1,845 debt and $513.51 damages, and in conformity therewith, a special execution was issued, and the land sold and purchased by one Eno, to whom a deed was made.On the 28th day of November, 1868, this petition was filed by the plaintiff to set aside the judgment.

The petition in this case does not proceed under the...