Field v. Sanderson

Decision Date31 March 1864
PartiesALFRED L. FIELD et al., Respondents, v. ELLEN SANDERSON, ADM'X OF GEORGE B. SANDERSON, Appellant.
CourtMissouri Supreme Court

Appeal from St. Louis Common Pleas Court.

Plaintiffs sued as assignees of John M. Keep, who had recovered a judgment against the intestate as garnishee of Manchester & Wentworth, in Wisconsin.

Defendant pleaded fraud in obtaining the judgment.

The defendant presented an affidavit and asked for a continuance of the cause, setting forth that the plaintiff had issued execution upon his judgment in Wisconsin to the sheriff of Rock county, and that said execution had been levied upon lands belonging to the defendant, and that said lands were advertised for sale by said sheriff on June 1st, 1861, and that the lands levied upon were worth $5,000. This affidavit was presented May 8, 1861.

This motion for continuance the court overruled. The parties then went to trial.

Plaintiffs offered in evidence the record of the judgment of John M. Keep v. Sanderson, as garnishee of Manchester & Wentworth, and proved the assignment of said judgment to the plaintiff.

Defendant, to prove the issue upon his part, offered a complete transcript of the record, containing the bill of exceptions taken at the trial of the original cause in Wisconsin; which was excluded by the court, and defendant excepted. Defendant then offered several depositions, which were excluded by the court, and defendant excepted. This bill of exceptions and the depositions were offered by defendant to prove the issue that the judgment was obtained by the fraud of the plaintiffs. Defendant filed his motion for a new trial, on the ground of the overruling the motion for a continuance, the exclusion of the depositions, and the ruling out of the defence. This motion was overruled.

Sanderson died May 30th, 1861; his administratrix was made a party, and appealed.

Whittelsey, for appellant.

I. The court below erred in overruling the motion for a continuance. While suing upon the judgment, the plaintiffs had issued execution upon the judgment in Wisconsin, and had levied the same upon lands of the defendant in Wisconsin, and had advertised the same for sale, and both proceedings were going on together. By the record of said execution and the sheriff's return, it appears that $3,000 were made upon that levy; said record is herewith filed. In suits upon judgments, it is usually alleged that the party has received no satisfaction, nor has he issued execution thereupon. (2 Chit. Pl. 483.)

The levy upon property is a satisfaction pro tanto, and the continuance should have been granted that the defendant might have had the opportunity of pleading the satisfaction as far as the property levied upon paid the judgment. This was not allowed the defendant.

II. The defendant should have been allowed to show that the judgment was obtained by the fraud of the plaintiffs. The court refused the evidence.

That a judgment was obtained by fraud is a good defence. (Miles v. Jones, 28 Mo. 87.)

Fraud vitiates judgments, deeds, and all proceedings. (Duchess Kingston's Case, 20 How. St. Tri. 544; Fermor's Case, 3 Coke, 80; Paxton v. Cobb, 2 Miller, Lou. R. 137.)

Lackland, Cline & Jamison, for respondents.

I. The court below did not err in overruling the motion for a continuance. (30 Mo. 462; McLawrine v. Monroe, adm'x.)

II. The court below did not err in ruling out the depositions offered by appellant. The judgment sued upon was regular, was rendered by the Circuit Court in Wisconsin. The said court had jurisdiction of the subject matter and over the parties in said suit. (Grover v. Grover, 30 Mo. 400; Destrehan v. Scudder, 11 Mo. 484; Warren v. Lusk, 16 Mo. 102.)

It was held that in a suit upon a judgment rendered in another State, where the record showed that the defendant appeared by attorney, it was inadmissible to dispute the attorney's authority, although it appeared by the record that the defendant was not served with process.

BATES, Judge, delivered the opinion of the court.

This is a suit upon the record of a judgment rendered by a court in Wisconsin, against the defendant, and in favor of one Keep, who assigned it to the plaintiffs.

When the case was called for trial, the defendant filed an affidavit in which he stated that the plaintiffs were...

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10 cases
  • Caffery v. Choctaw Coal & Mining Company
    • United States
    • Kansas Court of Appeals
    • June 2, 1902
    ... ... Indian Territory, such an attack upon that judgment would be ... collateral merely and not permissible. Field v ... Sanderson, 34 Mo. 542; Black on Judgments, sec. 290 and ... 291, are to the same effect; Chrisman v. Divinia, ... 141 Mo. 122; Union Depot ... ...
  • Anderson v. Anderson
    • United States
    • Indiana Appellate Court
    • December 31, 1979
    ...the plaintiff, and prevents her from proving the charges contained in the complaint for damages. Dunlap v. Glidden, 31 Me. 435; Field v. Sanderson, 34 Mo. 542; Hillsborough v. Nichols, 46 N.H. 379; Mason v. Messenger, 17 Iowa 261. It follows that so long as the judgment in question here rem......
  • Broussard v. Mason
    • United States
    • Kansas Court of Appeals
    • February 15, 1915
    ... ... Jones, 23 Mo.App. 132; Neun v ... Assn., 149 Mo. 74; Hamilton v. McLean, 139 Mo ... 678; Bates v. Hamilton, 144 Mo. 1; Field v ... Sanderson, 34 Mo. 542. (2) Defendant having pleaded ... fraud in the foreclosure, cannot rely upon fraud in the ... original sale of the ... ...
  • Bleakley v. Ux
    • United States
    • Kansas Supreme Court
    • April 6, 1907
    ... ... or collusion; but no judgment can be impeached for fraud by a ... party or privy to it." (2 Freeman, Judg. § 334 ... See, also, Field et al. v. Sanderson's ... Adm'x, 34 Mo. 542, 86 Am. Dec. 124; Greene v ... Greene, 68 Mass. 361, 61 Am. Dec. 454; El Capitan ... Land & ... ...
  • Request a trial to view additional results

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