McGindley v. Newton

• Decision Date: 31 October 1881
• Citation: 75 Mo. 115
• Parties: MCGINDLEY, Appellant, v. NEWTON.
• Court: Missouri Supreme Court

75 Mo. 115

MCGINDLEY, Appellant,

v.NEWTON.

Supreme Court of Missouri.

October Term, 1881.

A suit will not lie to set aside or correct errors in a judgment obtained without fraud, or to procure a re-taxation of costs.

Appeal from Macon Circuit Court.--HON. ANDREW ELLISON, Judge.

AFFIRMED.

A. N. McGindley and James Carr for appellant.

Eli J. Newton pro se.

HENRY, J.

In 1870 the plaintiff was duly appointed by the common pleas court of Macon county, having probate jurisdiction, guardian and curator of the minor heirs of Benjamin Stephens, deceased; and qualified, and entered upon the discharge of the duties, as such, and in April, 1875, he filed in said court, for the purpose of a final settlement. his account with said wards, and at the July term of said court, his final settlement was passed upon, and the court found that he was indebted to said wards in the sum of $245, and from the judgment of the court, he appealed to the circuit court of Macon county. Prior to said adjudication in the probate court, the defendant herein, Eli J. Newton, was appointed by said court guardian and curator of said minor heirs, and, as such, appeared in the probate court in said cause, and afterward by the circuit court, on his application, was made a party to the proceedings then pending in said court on appeal. He had witnesses subpœnaed and depositions taken in the cause, and on the trial thereof in said court, it was found that plaintiff was indebted to said wards in the sum of $245, and was ordered to pay said sum to said Eli J. Newton.

The petition alleged the foregoing facts, and also that Newton unlawfully procured his appointment as guardian and curator of said minors, and obtruded himself into said cause, both in the probate and the circuit court, and caused unnecessary costs to be incurred, and unlawfully procured the clerk of the circuit court to enter the order specifically requiring plaintiff herein to pay said sum of $245 and costs to Newton. It is also alleged, that when Newton was appointed guardian and curator, plaintiff had not resigned or been removed as such, but was still the guardian and curator of said minors, and the prayer of the petition is, that the order of said court be modified, and legally entered, to the end that plaintiff may, on payment of any balance in his hands, receive a legal acquittance therefor, and that the costs so incurred by Newton be taxed and adjudged against him. The court sustained a demurrer to the petition, and the plaintiff...