Harris v. Sanders
| Citation | 38 Mo. 421 |
| Parties | WILLIAM R. HARRIS AND MATHEW MOORE, Plaintiffs in Error, v. AUGUSTUS O. SANDERS, EXEC'R OF R. P. TERRELL, DEC'D, Defendant in Error. |
| Decision Date | 31 October 1866 |
| Court | United States State Supreme Court of Missouri |
Error to Montgomery Circuit Court.
H. C. Hayden, for plaintiffs in error.
It is the peculiar province and jurisdiction of every tribunal to see that justice be done to parties litigant in its court. If from mistake, or misapprehension of facts or fraud, an entry is made upon its records which does injustice to the suitor, which pretends to detail a state of facts which is untrue,--when these facts are brought before this court, the entry can and ought to be corrected.--Warren v. Dalton et al., 16 Mo. 102, 114; ex parteTony, 11 Mo. 661-3; 1 Bac. Abr. (Bouv. ed.) tit. Audita Querula, 510; 10 Mo. 381-3.
Sharp and McKee, for defendant in error.
The rendition of the interlocutory and final judgments in the original suit against plaintiffs and others, defendants at the same term of the court, was correct--Adj. Sess. Acts of 1863, p. 24. The record filed by plaintiffs shows that the answer of the defendants in the said original suit was withdrawn by their attorney, and this act of the attorney was within the scope of his authority--N. Mo. R. R. Co. v. Stephens, 36 Mo. 150; Davidson v. Rozier, 23 Mo. 387.
A party defendant by attorney could appear in court for the purpose of withdrawing his answer, and not remain for any other purpose; and this being the case, the judgment of the court below shows no irregularity or contradiction on its face. The demurrer insists that if the defendants in the original suit felt themselves aggrieved by the judgment of the court overruling their motion for a new trial, they had their remedy by appeal; and that if they failed to prosecute their appeal, the remedy was lost.
The petition and record of plaintiffs show that plaintiffs' remedy, if they had any, was full and complete at law, and only to be retained by prosecuting an appeal; and as they failed to prosecute their appeal, they are without remedy.
There was no exception or appeal made or taken to the judgment of the court in overruling the original motion to set aside the judgment. There was no exception made to the judgment of the court below in sustaining the demurrer in the present suit--Collins v. Compton, 31 Mo. 529; Davis v. Colt, 31 Mo. 530.
At the May term, 1862, of the Montgomery Circuit Court the defendant in error, as executor of Robert P. Terrell, deceased, brought suit against William R. Harris and Mathew Moore, the plaintiffs in error, together with several other persons who were joined as co-defendants. The object of the suit was to recover judgment against the defendants as assignors of two promissory notes alleged to have been assigned to defendant in error's testator on the ground that the makers of the notes were insolvent. The defendants in the action appeared and filed a joint answer, denying every material allegation in the petition, and devolving the burden of proving the same on the plaintiff. The suit was continued for several terms, until the May term, 1864, when all the defendants except Harris and Moore (the plaintiffs in error here) appeared in court and withdrew the joint answer which had previously been filed. The plaintiff in the action then dismissed the cause as to all the co-defendants, and the court gave judgment against Harris and Moore by default, which was proceeded on at the same term to final judgment. In March, 1865, the plaintiffs in error filed their petition to have their judgment set aside and vacated, alleging that the withdrawal of the answer, which contained a just and meritorious cause of defence was unauthorized, and that the answer was withdrawn and the suit dismissed as to their co-defendants, and judgment rendered against them, by collusion between Sanders, the plaintiff in the...
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