Duncan v. Gibson

• Decision Date: 31 January 1870
• Citation: 45 Mo. 352
• Parties: WILLIAM DUNCAN, Respondent, v. DAVID E. GIBSON, Appellant.
• Court: Missouri Supreme Court

45 Mo. 352

WILLIAM DUNCAN, Respondent,

v.DAVID E. GIBSON, Appellant.

Supreme Court of Missouri.

January Term, 1870.

Appeal from Third District Court.

J. S. Phelps and T. A Sherwood, for appellant.

J. F. Hardin, for respondent.CURRIER, Judge, delivered the opinion of the court.

This is a proceeding in equity to restrain a judgment at law. It appears from the record that Gibson, the present defendant, commenced a suit against Duncan, the present plaintiff, returnable to the Lawrence County Circuit Court at its May term, 1864. The suit was instituted in March of that year, and Duncan was personally and seasonably served with process. The petition in the case counted on a promissory note alleged to have been executed by Duncan, and which was alleged to have been lost or destroyed. Duncan did not appear to the action or make any defense, and judgment was in consequence taken against him by default.

On the 20th of October, 1865, the present proceedings were instituted to enjoin the judgment rendered in the former suit. As grounds for the injunction, it is alleged that the judgment was founded upon a note which had been fully paid, satisfied, and surrendered prior to the commencement of that action, and that the plaintiff therein was well aware of the fact at the time; that, notwithstanding the groundlessness of the suit, the defendant therein (the present plaintiff) was deterred from making any defense thereto, because of “threats of violence to his person; which threats (the petition alleges) were avowed and put forth by persons of dangerous conduct and vicious habits;” whereby, it is further alleged, the defendant (present plaintiff) “had good reason to fear, and did fear, that if he appeared at the May term of the Lawrence Circuit Court, the time when said summons was returnable, his life would be taken.” The petition is voluminous, but the foregoing exhibits the substance of its material parts. The defendant demurred to the petition, and thus raises the question whether the plaintiff has shown, by his allegations, a sufficient excuse for not making in the former suit such defense as he might have had thereto while the same was pending. The Circuit Court granted the injunction, and the District Court affirmed its judgment. The defendant brings the case here by appeal.

It is a well established principle that, in cases of this class, the complainant must not only show that he had a good defense to the suit, in which the judgment sought to be enjoined was...