Collier v. Easton

• Decision Date: 30 April 1829
• Citation: 2 Mo. 145
• Parties: COLLIER v. EASTON AND RUSSELL
• Court: Missouri Supreme Court

2 Mo. 145

COLLIER

v.EASTON AND RUSSELL

Supreme Court of Missouri.

April Term, 1829.

APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY.

M'GIRK, C. J.

The bill sets forth that Easton sued one Prospect K. Robbins in the Lincoln Circuit Court in two suits. That Collier became the special bail of Robbins in one of them only. That Easton having recovered judgment against Robbins in both cases, sued out executions, which were returned nulla bona, and by of defendant not found. That Easton afterwards commenced two actions of debt against Collier in St. Charles Circuit Court, alleging a recognizance and breach in both cases. That the first of said suits against Collier, he alleges is the only one in which he entered into a recognizance. Easton recovered judgment at St. Charles and made the money. That in the second suit so brought against Collier, the judgment and execution against Robbins were set forth, and also a recognizance of Collier as special bail, which he alleges he never entered into, and that there is not among the records of the Lincoln Circuit Court, any record of such recognizance. That he, Collier, and the Clerk of the Lincoln Circuit Court have examined the records, and can find no such recognizance; that to the last mentioned suit he, Collier, pleaded the plea nul tiel record of the judgment, nul tiel record of the execution, and nul tiel record of the recognizance; that issues were made up and tried on these pleas in the St. Louis Circuit Court; that on the trial the plaintiff produced a transcript certified by the Clerk of the Lincoln Circuit Court, under the seal of the court, upon which the court found the issues for the plaintiffs. The complainant avers that the recognizance set forth in the transcript is the same given by him in the other suit against Robbins; that the clerk inserted the same by mistake, or that Easton made up the transcript out of parts of the two cases against Robbins. The bill prays a discovery from Easton as to the matters therein contained, prays for an injunction against the judgment at law, and general relief. To this bill there is a demurrer for want of equity The Circuit Court sustained the demurrer and dismissed the bill; to reverse that decree the cause is brought to this court.

The errors assigned are, that the decree should have been for the complainant, &c. I will consider the objections made by the counsel for Easton to the equity of the bill. The first and chief one is, that by this bill Collier seeks to re-try the issue of the nul tiel record. Second. That this matter having been once tried at law by a court of competent jurisdiction, cannot be re-examined in Chancery, even supposing the Chancery Court had jurisdiction of the subject matter. Third. Though it may be that a Court of Chancery would grant a new trial, to be had in a Court of Law, on a very extraordinary case of surprise, accident or mistake, yet as nothing of that kind is here shown, no relief ought to be granted. Fourth. No facts are alleged in the bill which were not in the...