Eoff v. Clay

• Decision Date: 01 June 1880
• Citation: 9 Mo.App. 176
• Parties: JOHN T. EOFF, Appellant, v. HAMPTON S. CLAY, ADMINISTRATOR, Respondent.
• Court: Missouri Court of Appeals

9 Mo.App. 176

JOHN T. EOFF, Appellant,

v.HAMPTON S. CLAY, ADMINISTRATOR, Respondent.

St. Louis Court of Appeals, Missouri.

Jun. 1, 1880.

1. Damages cannot be recovered for injuries occasioned by the act of another, where the plaintiff, by reasonable diligence and exertion, might have avoided the injury.

2. One who voluntarily pays an illegal judgment, obtained against him in an action instituted in his name without his knowledge or consent, cannot recover of him who caused the suit to be instituted.

APPEAL from the St. Charles Circuit Court, EDWARDS, J

Affirmed.

CHARLES L. MOSS, for the appellant, cited: Mayberry v McClurg, 51 Mo. 261; Benecke v. Miller, 44 Mo. 111 Miller v. Woodward, 8 Mo. 130.

MCDEARMON & GAUSS, for the respondent, cited. The State ex rel. v. Powell, 44 Mo. 436.

BAKEWELL, J., delivered the opinion of the court.

The petition alleges that in 1873 defendant's intestate caused to be brought, in the St. Louis Circuit Court, an action at law, in which plaintiff and his wife and others were plaintiffs, and David M. Stump and Sarah A. Stump defendants; that this suit was prosecuted under the personal supervision of said David M. Stump, and for his own ends, and by counsel employed by him, and resulted in a judgment against plaintiff and the other persons named as his co-plaintiffs in that action, for the costs of suit, on which judgment an execution issued, under which the sheriff levied upon four hundred and fifty bushels of wheat belonging to plaintiff, and thereby compelled him to pay, in satisfaction of the execution, $638. Plaintiff alleges that he never authorized the suit, and knew nothing of it until two years after the judgment was rendered against him; and that he has been put to great trouble and expense in the premises, and asks judgment against Clay, as administrator of Eoff, in the sum of $1,500.

Defendant demurred, on the ground that the Circuit Court of St. Charles had no jurisdiction, and that the petition does not state facts sufficient to constitute a cause of action. The demurrer was sustained, and plaintiff declined further to plead, and there was judgment for defendant.

If, as plaintiff alleges, a judgment was obtained against him in consequence of the unauthorized appearance of an attorney of the court in which the judgment was rendered, that judgment was open to a direct attack, if fraudulently and wrongfully obtained, without fault or negligence on the part of the plaintiff in this action. A direct action in equity undoubtedly lies against a judgment obtained by the unauthorized appearance of an attorney, if brought with all possible speed after the judgment is rendered. Thomas v. Steele, 22 Wis. 207; Bryant v. Williams, 21 Iowa, 329; Truett v. Wainwright, 9 Ill. 418; McKelway v. Jones, 17 N. J. L. 345; 7 Iowa, 321.

Plaintiff might have applied to the Circuit Court to restrain the sheriff from executing his writ; and if he chose to use no diligence to arrest the effect of the injury done him, he cannot recover for a loss which he voluntarily underwent, and which, by reasonable exertion and the assertion of his rights, he might have averted. The State ex rel. v. Powell, 44 Mo. 439. Had he fully established his right to relief, and set aside this judgment in a direct proceeding, he might then have proceeded against the attorneys, or against those who instigated them, for any actual damage, at least, that he could show he had sustained. If this were an action for damages sustained in consequence of an action wrongful in itself and directly affecting the...