Murray v. Yates

• Decision Date: 31 October 1880
• Citation: 73 Mo. 13
• Parties: MURRAY v. YATES, Appellant.
• Court: Missouri Supreme Court

73 Mo. 13

MURRAY

v.YATES, Appellant.

Supreme Court of Missouri.

October Term, 1880.

Appeal from Gentry Circuit Court.--HON. S. H. RICHARDSON, Judge.

REVERSED.

Geo. W. Lewis, Bennett Pike and Vinton Pike for appellant.

John Edwards for respondents.

HOUGH, J.

On the 24th day of January, 1876, Mary Yates, one of the defendants in the above entitled cause, filed, in the office of the clerk of the Gentry county circuit court, a petition to review and set aside the judgment theretofore rendered in said cause, in said court. The petition is entitled as above, and is as follows: “Mary Yates, one of the defendants in the above entitled cause, states that at the September term, 1872, of the circuit court for Gentry county, an interlocutory judgment was rendered in the above entitled cause by said court for the partition and division of the following described lands, situated and being in Gentry county, among the above named parties, towit: The south half of the northwest quarter of the southwest quarter, and the northwest quarter of the northwest quarter, both of section number 8, and the west half of the southwest quarter of section number 5, all in township number 64, of range number 30, containing 140 acres, more or less. And the same was ordered by the court to be sold upon the terms named in said judgment, that is, one-third of the purchase money in hand, one-third on a credit of twelve months and the remaining third on a credit of two years; that at the March term, 1873, of said circuit court, the said lands were sold by the sheriff of said county, in pursuance of the order of the said court, to the plaintiff, R. B. Murray, and the defendant, Solomon Fist, for the sum of $458, and at the same term of said court the sheriff filed his report of the sale of said lands, and said cause was continued to await the collection of the purchase money unpaid; that afterwards, to-wit: at the September term, 1875, of said court, said sheriff made to said court his final report of the collection of the balance of the purchase money for said lands, and at said term, towit: on the 11th day of September, 1875, said report was approved by the court and final judgment in said cause was rendered by the court, as required by law in such cases, directing the money to be paid out by the sheriff in accordance with the rights of the parties as ascertained and declared by the said court in said interlocutory judgment, and deeds were ordered to be made to the purchasers of said lands by said sheriff; that this defendant was, at the time said suit was brought, has hitherto been, and is still, a non-resident of this State, and was notified of the pendency of this suit by publication of notice of suit and not by summons, and at no time appeared in said action as defendant, or otherwise, or had actual notice of the same till long after said lands were sold.” The petition then proceeds, in compliance with the statute, to state wherein the allegations of the petition on which the judgment of partition was rendered, were materially untrue as to the petitioner's interest, and prays that said judgment may be set aside and that sh...