Boynton v. Boynton

• Decision Date: 21 December 1914
• Docket Number: No. 11285.,11285.
• Citation: 186 Mo. App. 713,172 S.W. 1175
• Parties: BOYNTON v. BOYNTON et al.
• Court: Missouri Court of Appeals

172 S.W. 1175

186 Mo. A. 713

BOYNTON v. BOYNTON et al.

No. 11285.

Kansas City Court of Appeals. Missouri.

December 21, 1914.

Rehearing Denied February 1, 1915.

1. PLEADING (§ 42) — PETITION — EQUITY — NEGATIVING REMEDY AT LAW.

As the law side of the court is ordinarily the proper tribunal for the administration of justice, a petition, in order to state a case in equity, must disclose a state of facts showing that full and adequate justice cannot be had at law.

2. JUDGMENT (§ 898) — SATISFACTION — VACATING ENTRY OF SATISFACTION.

Where the entry of the satisfaction of a judgment is procured through fraud or without consideration, there is an ample remedy at law by a motion filed in, or as a subsequent part of, the original case on which issue may be joined and the matter regularly tried with a jury, and, while the court may order that an independent action be instituted and submitted to a jury, such action is at law, and a bill in equity will not lie to set aside the satisfaction.

3. JUDGMENT (§ 260) — MOTION IN ARREST — JOINDER OF CAUSES — WAIVER OF OBJECTIONS.

Where, in an action at law on a judgment in which counts in equity to set aside a satisfaction of the judgment for fraud were joined therewith, defendant neither objected to the joinder of the action on the judgment with counts ex delicto nor moved for a separate trial of the law count, the objection in a motion in arrest of judgment came too late, as the matter was not of vital consequence, and was such an irregularity as might be waived in the trial.

4. JUDGMENT (§ 899) — ACTIONS ON JUDGMENT — EFFECT OF SATISFACTION.

An action on a judgment may be maintained, though it appears to be satisfied by entry on the margin of the record, if such satisfaction was procured by fraud.

5. JUDGMENT (§ 914) — ACTIONS ON JUDGMENT — PLEADING — SATISFACTION OF JUDGMENT.

In an action on a judgment, if defendant wishes to rely upon a release or satisfaction, it is a matter of defense for him to plead, and plaintiff may then plead in the reply that the satisfaction was obtained by fraud.

6. JUDGMENT (§ 913) — ACTIONS ON JUDGMENT — PLEADING — SATISFACTION OF JUDGMENT.

Where, in an action on a judgment, plaintiff joined in the same petition counts in equity to cancel a satisfaction of the judgment for fraud which did not state causes of action, and all of the counts were tried as one case, in practical effect a case was stated on the judgment, together with affirmative allegations that the entry of satisfaction was obtained through fraud, thus anticipating the defense that the judgment was satisfied.

7. APPEAL AND ERROR (§ 665) — ABSTRACTS — CONCLUSIVENESS.

Under Rev. St. 1909, § 2048, providing that the respondent may, if dissatisfied with appellant's abstracts of the record, file such abstracts on his part or any additional abstracts, and that, in case the opposite party shall not concur in such abstract, he shall specify his objections thereto in writing, and file them with the clerk, and that thereupon the clerk shall forthwith issue and send an official order commanding the clerk of the trial court to send a certified transcript of the part of the record in dispute, where respondent challenged the correctness of appellant's abstract and printed and filed one indicating that appellant took no exception to the ruling complained of, and appellant did not dispute this by asking that the original record be brought up, respondent's abstract must be accepted as true.

8. JUDGMENT (§ 899) — ACTIONS ON JUDGMENT — EFFECT OF SATISFACTION.

Where there was no consideration for a satisfaction of a judgment, it did not defeat an action on the judgment whether or not the entry thereof was fraudulently procured.

Appeal from Circuit Court, Randolph County; A. H. Waller, Judge.

Action by Emma E. Boynton against J. R. Boynton and others. Judgment for plaintiff, and defendants appeal. Affirmed.

B. R. Dysart, of Macon, and Hunter & Chamier, of Moberly, for appellants. B. E. Cowherd, of Huntsville, and A. J. Quayle, of Joplin, for respondent.

ELLISON, P. J.

Plaintiff was divorced from her husband, Ira T. Boynton, who is a son of defendants, and she recovered a judgment for $1,500 against defendants for alienating his affection for her. About half of this judgment appears to have been paid. Afterwards she entered satisfaction for the balance, being induced to do so, as she charges, by her former husband (in fraudulent conspiracy with defendants), on his promise to remarry her. Her action is stated in a petition containing three counts, two in equity to set aside the release of the judgment, on account of this fraud of defendants and for want of consideration, and the third a case at law to recover the sum due on the judgment. The trial court decreed that the release be set aside, and it also rendered judgment on the third count for the balance due on the judgment.

Defendant now contends that the first and second counts did not plead facts sufficient to constitute a cause of action in equity, in that neither negatived a remedy at law; and, further, that in point of fact, conceding the release was obtained by fraud, those counts showed affirmatively that plaintiff had an adequate remedy at law. The law side of the court is, ordinarily, the proper tribunal for the administration of justice. Hence the rule is that the petition, in order to state a case in equity, must disclose a state of facts which show that full and adequate justice cannot be had at law. Somerville v....