Dunn v. Hansard

• Decision Date: 31 January 1866
• Citation: 37 Mo. 199
• Parties: JAMES DUNN, JR., ADMINISTRATOR OF THE ESTATE OF PRESTON B. REED, AND PATRICK EWING, Defendants in Error, v. ROBERT C. HANSARD, Plaintiff in Error.
• Court: Missouri Supreme Court

37 Mo. 199

JAMES DUNN, JR., ADMINISTRATOR OF THE ESTATE OF PRESTON B. REED, AND PATRICK EWING, Defendants in Error,

v.ROBERT C. HANSARD, Plaintiff in Error.

Supreme Court of Missouri.

January Term, 1866.

Error to Callaway Circuit Court.

C. H. Hardin and H. C. Hayden, for plaintiff in error.

E. B. Ewing and Sheeley, for defendants in error.

HOLMES, Judge, delivered the opinion of the court.

This is a petition in the nature of a bill in equity to restrain a judgment at law. It appears that the plaintiff Reed brought an action of claim and delivery against the defendant Hansard for the possession of a negro slave, which was seized and delivered over to him, upon his giving the usual bond, with Patrick Ewing, the other plaintiff herein, as security. This suit proceeded in the Callaway Circuit Court until a judgment was rendered against the plaintiff therein for costs, which the defendant Hansard supposed to be a final judgment, and a failure to prosecute the action. Thereupon Hansard brought suit against Reed and Ewing upon the bond, to which they answered, setting up as a defence that the replevin suit was still pending undetermined, and the plaintiff had judgment for costs only. This judgment was reversed in the Supreme Court, (Hansard v. Reed, 29 Mo. 472,) for the reason that the suit had been prematurely brought, the suit in which the bond had been given not having been finally determined. In this latter suit the court below, subsequently to the supposed final judgment, granted the plaintiff leave to amend his petition, whereby the former judgment was held in Hansard v. Reed to have been impliedly set aside and the cause re-instated in court. To this amended petition an answer was filed by the defendant, but at a subsequent term, on his motion the cause was stricken from the docket, and so far as the record shows, no exception was taken by the plaintiff therein to that action of the court, and no further proceeding appears to have been had in the cause. In the meantime Hansard had dismissed his original suit upon the bond, and brought another suit thereon against the same defendants. In this suit service was made upon the defendant Ewing, but no service was had upon Reed. At the return term, as it appears by the record, leave was granted to the defendant to file an answer within sixty days before the next term, but it is not distinctly stated whether or not either defendant actually appeared by attorney or otherwise; and at the next term thereafter, the record shows that the parties appeared by their counsel, and that there was a judgment by default, an inquiry of damages, and a final judgment rendered for the plaintiff for the sum of $1,080, damages and costs. The present suit was instituted for the purpose of enjoining the execution of this judgment, an injunction was granted, and a final decree entered making the judgment perpetual. The decree finds as facts “that the judgment sought to be enjoined was obtained by defendant in this cause against the plaintiffs Reed and Ewing, at the April term. 1863, of this court, on a bond given by the present plaintiff for the return of a negro, which by the sheriff under writ issued by the clerk of this court, in a certain cause then pending in this court, by the children of defendant Hansard, by their curator Reed, against said Hansard, and which was commenced in 1855; that Reed resigned his curatorship of the wards, and the petition was amended in their name by their present curator, Jefferson F. Jones, which said suit was improperly stricken from the docket at the April term, 1861, of this court, and is in fact still pending, and so remains undisposed of at this time. The court finds that the suit on the bond in which the judgment was rendered now sought to be enjoined, was commenced on the 9th of February, 1861, and that the plaintiff Reed, defendant in that suit, was never served with process; that he never entered his appearance therein, or authorized any one to enter his appearance for him, and that Ewing was laboring under the belief that he had nothing to do with any suit on the bond until the said suit of the children of Hansard by their curator Jones should be determined, and that he was surprised and misled as to the nature of said suit and the judgment so rendered against him, and that he was mistaken and misled in supposing that Jones and Boulware were his attorneys, when in fact they were not; and also finds that the fact that the said judgment was rendered against him--till after...