Holland v. Johnson

• Citation: 80 Mo. 34
• Parties: HOLLAND et al., Appellants, v. JOHNSON.
• Decision Date: 31 October 1883
• Court: Missouri Supreme Court

80 Mo. 34

HOLLAND et al., Appellants,

v.JOHNSON.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Hickory Circuit Court.--HON. R. W. FYAN, Judge.

AFFIRMED.

A. S. Smith and F. P. Wright for appellants.

Smith & Krauthoff with Nixon & Wallace for respondent.

EWING, C.

Plaintiffs filed their petition in the circuit court of Hickory county, November, 1875, against the respondent to have a certain deed set aside for fraud. Defendant demurred to the petition, which was sustained, and the case is here on appeal as to the sufficiency of the petition.

The petition alleges that in April, 1866, the plaintiff, Henry W. Holland, sold and conveyed to Thomas Holland certain land in Hickory county, (describing it,) which is the land in controversy; that a deed from one Quigg, sheriff of Hickory county, to the defendant, Marshall W. Johnson, conveying the land in controversy, is on file in Hickory county, which deed recites that on July 22nd, 1864, a writ of attachment issued from the circuit court of Hickory county in favor of said Johnson and others and against Henry W. Holland and Alexander Foster, which was levied on the land in dispute as the property of Henry W. Holland; that on July 31st, 1867, a judgment was rendered in the circuit court of Pettis county in favor of respondent Johnson and others and against Henry W. Holland and others for $30,000, and costs, and the said lands ordered sold; that on February 28th, 1868, said lands were sold to defendant Johnson for $604.

The petition in this case then alleges that in this attachment proceeding the only notice had by Henry W. Holland was by publication; that the petition in the attachment suit alleged that Henry W. Holland and others had committed a trespass by taking goods, etc., of the value of $30,000; that a part of the defendants in that proceeding were served with a summons and Henry W. Holland and others only by attachment and publication; that the said sheriff and the plaintiffs in said suit failed at any time to “file a notice of said suit or abstract of the lands so attached;” that the notice by publication failed to state the amount claimed as damages for the alleged trespass; that at the September term, 1864, of said circuit court of Hickory county a part of the defendants in said suit, to-wit: Charles A. Pippin, John F. Stark, John Huffman, Jesse Huffman, Wallace Drumon and George W. Rains, appeared and answered, and at the same term a judgment by default was rendered against Benj. H. Massey, another of said defendants; that at the September term, 1865, of said court, John F. Stark, John Huffman and Wallace Drumon filed a petition for a change of venue, but that said petition was irregular in that it failed to state that “the facts upon which it was based had come to the knowledge of said defendants after the filing of their answer,” as required by law, also irregular in that it alleged that “one of the said plaintiffs had such an influence over the seventh and fourteenth judicial circuits and over that portion of the first circuit south of the Osage, that a fair trial could not be had,” etc.; and failed to allege “the defendants had an undue influence over the minds of the inhabitants of Hickory county where the suit was pending;” that the affidavit to said petition for a change of venue was sworn to by only one of said defendants; that afterward, at the September term, 1865, of said court, upon the petition of the parties named, “a minority of the defendants in said cause, and while the aforenamed interlocutory judgment against said Massey was standing, and while the answer of a part of the defendants was on file, and without the knowledge, appearance or consent of Henry W. Holland and Alexander Foster, or any other of said defendants, save those named in the petition for a change of venue, the court ordered a change of venue to the circuit court of Pettis county, as to the parties which had made the aforenamed application therefor;” that a transcript was filed in Pettis county, and on November 2nd, 1865, said court gave plaintiffs leave to file an amended petition; that on the 6th day of January, 1866, plaintiffs filed their amended petition against all of the defendants, and a bill of items upon which it was based; that in the amended petition plaintiffs alleged and claimed damages to the amount of $135,000, whereas the original petition alleged and claimed damages for $30,000, and that said amended petition set forth, named and claimed damages for the taking of goods and property which had not been named in the original petition; that when the amended petition was filed the plaintiffs caused a notice to B. H. Massey and Henry W. Holland to be made, that they had filed an amended petition, upon...