Perkins v. St. Louis, K. C. & C. R. Co.

• Decision Date: 23 February 1898
• Citation: 143 Mo. 513,45 S.W. 260
• Court: Missouri Supreme Court
• Parties: PERKINS v. ST. LOUIS, K. C. & C. R. CO.

45 S.W. 260

143 Mo. 513

PERKINS v. ST. LOUIS, K. C. & C. R. CO.

Supreme Court of Missouri, Division No. 1.

February 23, 1898.

JUDGMENT — EQUITABLE RELIEF — REMEDY BY APPEAL.

In condemnation proceedings by a railroad, where the judgment, entered by the fraud of plaintiff, erroneously deducted, from the damages allowed defendant, the costs accrued after the filing of the report of the commissioners, the failure of defendant to appeal from the dismissal of his motion to set aside such judgment because of the fraud, or to appeal from the judgment within the time allowed for appeals, precludes him from thereafter bringing a suit in equity, to set aside the judgment on the ground of fraud.

Appeal from circuit court, Franklin county; Rudolph Hirzel, Judge.

Suit by Joseph T. Perkins against the St. Louis, Kansas City & Colorado Railroad Company to set aside a judgment for fraud. From a decree for complainant, defendant appeals. Reversed.

Adiel Sherwood, for appellant. John W. Booth, for respondent.

WILLIAMS, J.

The defendant in this case instituted in the circuit court of Franklin county, on the 1st of February, 1887, a statutory proceeding for the condemnation of a right of way for its railroad, over certain real estate in that county belonging to plaintiff. The railroad company, after the commissioners appointed by the court had assessed the damages to plaintiff's property at $2,325, demanded a new assessment by a jury, which was granted. The case was then sent by change of venue to the circuit court of St. Louis county, and was set for trial at the May term, 1888, of said court. After the parties and their witnesses had waited a day or two for the case to be reached, negotiations for a compromise were begun, which resulted in an agreement that plaintiff's damages should be fixed at $1,350, and this agreement was announced to the court. There is some conflict in the testimony as to what subsequently occurred. The evidence upon the part of the plaintiff was that his attorneys resided in Franklin county; that they had no other business requiring their attendance upon the circuit court of St. Louis county, and that they were anxious to return home; that it was therefore agreed between them and one of the defendant's attorneys in that proceeding that the latter would attend to entering a proper judgment in accordance with the compromise, and would have it correctly written to conform to the agreement; that thereupon plaintiff's attorneys returned home, and paid no further attention to the matter, relying upon said agreement. The defendant introduced evidence tending to show that the attorney representing it in said suit did not agree with plaintiff's attorneys to see that the judgment was correctly written by the clerk. The circuit court determined this issue for the plaintiff. A judgment was entered May 24, 1888, in favor of the plaintiff in this case, who was defendant in that proceeding, for $1,350, the damages agreed upon, but against him for all costs that accrued after the filing of the report of the commissioners, and directing the clerk to deduct such costs from the $1,350, and vesting the right of way over the land in the railroad company. Plaintiff instituted this suit in equity in the circuit court of Franklin county, on the 17th of August, 1893, to set aside the above-mentioned judgment rendered in the condemnation proceedings on the 24th of May, 1888. The ground of action is that plaintiff was entitled, under the compromise, to a judgment for $1,350, and that defendant, contrary to the agreement that its attorney would have a proper judgment entered, fraudulently procured the judgment to be so written as to charge to plaintiff the costs incurred after the filing of the commissioners' report, said costs amounting to about $300, and his damages being reduced to that extent. It does not appear when plaintiff...