Campbell v. Garton

• Citation: 29 Mo. 343
• Parties: CAMPBELL, BY HIS NEXT FRIEND, Defendant in Error, v. GARTON, Plaintiff in Error.
• Decision Date: 31 January 1860
• Court: Missouri Supreme Court

29 Mo. 343

CAMPBELL, BY HIS NEXT FRIEND, Defendant in Error,

v.GARTON, Plaintiff in Error.

Supreme Court of Missouri.

January Term, 1860.

1. Where a judgment by default has been regularly rendered, a motion to set the same aside should be accompanied by an affidavit showing a meritorious defence and that there has been due diligence.

2. A petition for a review will not lie under section 13 of article 12 of the act concerning practice in civil cases (R. C. 1855, p. 1280, § 13), if the defendant has been regularly summoned as required by law, or has appeared to the suit, and interlocutory and final judgment shall have regularly been rendered against him.

Error to Pettis Circuit Court.

The facts sufficiently appear in the opinion of the court.

Ford & Field, for plaintiff in error.

The petition should have been granted. The defendant never appeared to the action. The petition sets forth all the facts required by the statute. The motion to set aside the interlocutory judgment was not an appearance. There was no negligence on the part of defendant. In addition to the facts set forth as required by the sixteenth section of the twelfth article, the petition embraces other good cause for setting aside the judgment, the discovery of new and material evidence. (Sto. Eq. Pl. §§ 404, 413; 2 Smith, Ch. Pr. 50, 60; Mitf. Ch. Pr. 127; Barton Eq. 215; 4 Hen. & Munf. 242; 2 Id. 589; 2 J. J. Marsh. 492; 8 B. Monr. 343.)

Welch & Hicks, for defendant in error.

I. The court committed no error in dismissing the petition of review.

EWING, Judge, delivered the opinion of the court.

Defendant in error sued plaintiff in error in ejectment, in which there was personal service on the defendant, and judgment by default rendered at the November term, 1857, which was made final at the next regular term thereafter. On the same day plaintiff in error filed his motion to set aside the judgment by default and for leave to file an answer, which was overruled. The motion was based on an alleged mistake or misunderstanding of counsel to whom plaintiff in error had spoken, and who failed to file an answer. The motion was not supported by affidavit. At the April term, 1858, the judgment having been made final, on the 8th of September, 1859, plaintiff in error filed in the clerk's office of said court a petition asking the court to set aside the judgment by default and the final judgment, and to permit him to answer said petition. At the next term, November, 1859, the defendant in error filed his answer denying that plaintiff was entitled to the relief sought by his petition. This answer, on motion of the plaintiff in error, was stricken out. The petition for a review was then overruled, and the court refused to set aside the judgment, to which opinion of the court exceptions were saved, and the cause is before us on a writ of error.

The petition for a review is based upon the following grounds: First, that the petitioner never appeared to the action, nor was he made a party as the representative of one who did appear to the action; second, he was guilty of no negligence in not appearing to said suit, and that since the final judgment was rendered he has obtained the patent from the United States to the land in controversy; that he was the legal owner of the land; and that he had a good defence to the action. This was not a case for the proceeding by a petition for review, and the plaintiff in error misconceived his remedy in resorting to it. A petition for review is the appropriate remedy where an interlocutory...