Edgell v. Sigerson

• Decision Date: 31 March 1855
• Citation: 20 Mo. 494
• Parties: EDGELL, Respondent, v. SIGERSON, Appellant.
• Court: Missouri Supreme Court

20 Mo. 494

EDGELL, Respondent,

v.SIGERSON, Appellant.

Supreme Court of Missouri.

March Term, 1855.

1. In a pleading under the new practice, to avoid the estoppel of a judgment, it is sufficient to allege that it was obtained by fraud, without stating the facts which constitute the fraud.

2. A judgment obtained by fraud is void.

Appeal from St. Louis Court of Common Pleas.

This was an action commenced in January, 1854, upon a note dated October 1, 1848, expressed on its face to bear interest from date, payable annually. The petition stated that the plaintiff, in 1852, had commenced a suit against the defendant to recover the instalments of interest then due, in which the defendant had pleaded that the clause in the note specifying that interest was payable annually had been inserted after its execution without his knowledge, authority or consent, and that the plaintiff had recovered a judgment in that suit. This allegation in the petition seems to have been intended to estop the defendant from setting up the same matter as a defence in the present suit.

The defendant answered, alleging that after he had executed the note, and after it had passed from his possession, the words “with interest from date at six per cent. per annum, interest payable annually,” were fraudulently inserted in the note by the then holder, without his knowledge or consent, and that it was subsequently transferred and delivered to the plaintiff; and insisting that said fraudulent alteration rendered the note void. He admitted the recovery of a judgment in a suit for interest, as stated in the petition, but alleged that “said judgment was obtained by fraud and by perjury committed on the trial of the issues in the cause,” and was therefore null and void.

This answer was stricken out on motion, and a judgment rendered for the plaintiff, from which the defendant appealed.

Krum & Harding, and A. M. Gardner, for appellant.

Fraud in the recovery of the judgment is distinctly alleged in the answer. If this were true, the judgment would constitute no bar to the defense set up. (1 N. H. 257; 15 Johns. 121.) This defence was well pleaded. (See v. Cox, 16 Mo. 166.)

Shepley & Kasson, for respondent, among other points insisted that under the new practice, one object of which was to prevent delay and fictitious defences, the judgment which would estop the plaintiff from setting up an anticipated defence was properly pleaded in the petition, and that the allegation of the answer that the judgment was obtained by fraud and perjury, without stating who was guilty of the fraud or in what it consisted, was not sufficient to avoid the effect of the judgment, being a conclusion of law and not a statement of facts. (McMurray & Thomas v. Gifford, 5 Howard's Prac. 14.)

LEONARD, Judge, delivered the opinion of the court.

1. This judgment must be reversed for the error of the court in pronouncing against the defendant as for want of an answer.

Without stopping to settle the propriety (which is certainly very questionable) of the mode of pleading adopted by the plaintiff on the present occasion, in order to avail himself of the alleged estoppel by reason of the judgment, it is enough that the answer contains sufficient matter to avoid the estoppel. In disregarding the answer, the court below appears to have gone upon the idea that, under the new system of pleading, the alleged fraud set up as a ground...