Greenard v. Isaacson

• Decision Date: 05 April 1920
• Docket Number: No. 13532.,13532.
• Citation: 220 S.W. 694
• Parties: GREENARD v. ISAACSON et el.
• Court: Missouri Court of Appeals

220 S.W. 694

GREENARD v. ISAACSON et el.

No. 13532.

Kansas City Court of Appeals. Missouri.

April 5, 1920.

Appeal from Circuit Court, Buchanan County; L. A. Vories, Judge.

"Not to be officially published."

Bill by J. F. Greenard against A. E. Isaacson and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

S. P. Reynolds, of St. Joseph, for appellants.

Sherman & Otis, of St. Joseph, for respondent.

ELLISON, P. J.

This proceeding is a bill in equity brought against the sheriff of Buchanan county to enjoin the enforcement of a judgment on account of fraud alleged to have been practiced in procuring it to be rendered. The judgment in the trial court was for the plaintiff.

It appears that this plaintiff was sued by one Dowell before a justice of the peace in Buchanan county, and that upon judgment being rendered against him by the justice he appealed to the circuit court of that county, the appeal being returnable to the May term, 1919, of the circuit court. Judgment was rendered for Dowell against this plaintiff, an execution issued, placed in the hands of the sheriff, and he was about to execute it against plaintiff's property, when he was stopped by the issuance of the writ herein. On his own motion Dowell was made a party defendant, and he proceeded with the defense. It appears that plaintiff, as defendant in the Dowell case, had an attorney who unexpectedly left that county and who turned a number of cases, including the Dowell case, over to Sherman & Otis, attorneys, for their attention. The latter firm was then employed by plaintiff, the defendant in the Dowell case.

The Buchanan county circuit court is composed of three divisions, and the Dowell case was docketed for trial in division No. 3 for the May term, 1919. To be triable at that term it was necessary, under the rules of the court, to mark it for trial on the first day of the term in a book provided for that purpose. The present attorney for this plaintiff (defendant in the other case) was not employed in the latter case in time to mark it for trial, but as soon as he was employed he looked and saw that Dowell, also, had not marked it. Under the rules of court, the case, not being marked for trial on the first day of the term, would go over to the next term. But it appears that the case was marked for trial in division No. 2 by Dowell, or some one for him, though already docketed in division No. 3, as above stated. It was given "a setting" for trial in division No. 2 for May 22, 1919.

When May 22d came on, the case then being regularly and properly first docketed in division No. 3, it became necessary to get an order of transfer from the latter division to division No. 2, and...