George v. Tutt

• Decision Date: 31 August 1865
• Citation: 36 Mo. 141
• Parties: EDWARD R. GEORGE, Respondent, v. THOMAS E. TUTT, et als., Appellants.
• Court: Missouri Supreme Court

36 Mo. 141

EDWARD R. GEORGE, Respondent,

v.THOMAS E. TUTT, et als., Appellants.

Supreme Court of Missouri.

August Term, 1865.

Appeal from Buchanan Court of Common Pleas.

Ensworth, H. M. & A. H. Vories, for respondent.

Jones. Owen and Ringer, for appellants.

WAGNER, Judge, delivered the opinion of the court.

The respondent filed his petition in the court of Common Pleas for Buchanan county, to restrain the appellants from proceeding to collect a judgment, which they had obtained at law in said court against him and one Thornton S. George. The court granted a temporary injunction, and on a final hearing of the cause made it perpetual. The facts appear that the appellants brought their suit against the two Georges in the spring of 1861, in the above named court; that process was duly issued and served, and that at the November term thereafter of said court judgment was rendered by default in favor of appellants and against the respondent. No appearance or defense was made to the action.

Respondent alleges in his petition, that he had a good and valid defense to the note on which the judgment is founded, and that he was precluded from attending the November term of court on account of the intense excitement then prevailing in the country, and that it was dangerous to travel from home. He also states that it was generally understood there would be no court at that time, and that the judge of the court had said that he would hold no session for the trial of cases. Evidence was introduced tending to prove these facts; but it is unnecessary to review it here. No principle is better established, than that a party seeking to be relieved by injunction against a judgment at law, must show that it is not only against conscience to execute such judgment, but that he could not have availed himself of his defense at law, or that he was prevented by fraud or accident, without any fault or negligence in himself or agents. (2 Sto. Eq. Jurisp., § 887; 7 Cranch. 332.)

There is not a single ingredient in this case entitling the respondent to equitable relief; he had full opportunity to avail himself of any defence he had against the note, at law. He neither appeared at the return term, nor at the next term thereafter, at which term judgment was taken. The excitement existing in the country in the fall of 1861, was no valid excuse; more than six months had elapsed from the time the summons was regularly served on him, and yet it seems he had not even employed counsel to...