Randalls v. Wilson

• Decision Date: 31 October 1856
• Citation: 24 Mo. 76
• Parties: RANDALLS et al., Defendants in Error, v. WILSON et al., Plaintiffs in Error.
• Court: Missouri Supreme Court

24 Mo. 76

RANDALLS et al., Defendants in Error,

v.WILSON et al., Plaintiffs in Error.

Supreme Court of Missouri.

October Term, 1856.

1. A judgment against infant plaintiffs, appearing by attorney, may be recalled or set aside on motion of such plaintiffs, although at the date of the judgment one of such infant plaintiffs may have attained his majority.

2. The judgment being entire, must be recalled and set aside as to both plaintiffs.

3. After the judgment is recalled, the suit may be dismissed.

Error to St. Louis Circuit Court.

Geyer & Dayton, for plaintiffs in error.

Todd & Krum, for defendants in error.

RYLAND, Judge, delivered the opinion of the court.

Evermant E. and Emerine A. Randalls instituted their suit in the St. Louis Circuit Court for the April term, 1851, thereof, against John Wilson and James Harrison, for setting aside a deed of conveyance of land, and vesting the title thereof in them, and restoring the possession thereof to them. Wilson was not summoned, and did not appear; and as to him the suit was discontinued. Harrison was summoned and answered, and the cause was heard March 1st, 1853, and judgment rendered for Harrison, with costs against the plaintiffs below. The suit was instituted and prosecuted to judgment by plaintiffs below, by their attorney only. On the 7th day of March, 1854, the plaintiffs below filed their motion in the courts below that said judgment be recalled on the ground that when said suit was instituted both the plaintiffs below were minors, and that one of them, Emerine A., was a minor when said judgment was rendered, and still is, and married to Henry Ashbrook, who appeared with her in this proceeding, of which allegations affidavits were filed for proof and were admitted to be true. Harrison appeared and opposed this motion, which, upon being heard by the court, was sustained, and the said judgment was recalled. Harrison excepted, and brings this case to this court by writ of error.

From the statement made above it will be seen that the rulings of the court below, in recalling the judgment, first herein rendered in favor of the defendant below (Harrison), and also in permitting plaintiff below to dismiss the suit, are the matters now presented for the decision of this court. The questions involved have heretofore been before this court, and have been decided. In Powell v. Gatt (13 Mo. 458) it was held that a judgment against an infant defendant, who appears by attorney, may be set aside upon motion made after the infant has become of age. In this case of Powell v. Gatt the judgment was rendered in 1841, and the motion to set aside in 1847. The court held that there was no limitation to be found in our statute book to a proceeding to correct a judgment of law founded upon an error of fact;...