Randolph v. Sloan

• Decision Date: 31 October 1874
• Parties: WILLIAM RANDOLPH, Plaintiff in Error, v. SAMUEL C. SLOAN, Defendant in Error.
• Court: Missouri Supreme Court

58 Mo. 155

WILLIAM RANDOLPH, Plaintiff in Error,

v.SAMUEL C. SLOAN, Defendant in Error.

Supreme Court of Missouri.

October Term, 1874.

Error to Marion Circuit Court.

Lander & Drummond, for Plaintiff in Error.

I. It is too late to move to set aside a judgment after final decree. (Wagn. Stat., 1052, §§ 4, 5; Matthews vs. Cook, 35 Mo., 286.)

The rule that courts may modify or set aside its entries during the term at which they are made, does not include the power to set aside judgments lawfully rendered, especially after the term has passed. (Ashly vs. Glasgow, 7 Mo., 423; Bartling vs. Jamison, 44 Mo., 141.)

Anderson & Boulware, for Defendant in Error.

I. The judgment is in the breast of the court, and becomes a finality only by the adjournment of the court. The action of the court in granting a motion made during the term of its rendition, to set aside a judgment, is discretionary, and not subject to be reviewed in an appellate court. (Freem. Judg., pp. 62, § 90, and cases cited in notes; Dougherty vs. President, etc., 53 Mo., 579, Harber vs. Pacific R. R. Co., 32 Mo., 425; Hill vs. St. Louis, 20 Mo., 587; Ashly vs. Glasgow, 7 Mo., 320.)

II. In this case there was neither personal service nor appearance of the defendant, and the judgment would not become absolute until the expiration of three years from its rendition.

SHERWOOD, Judge, delivered the opinion of the court.

The plaintiff, Wm. Randolph, alleged in his petition, in subtance, that Robert H. Sloan, the brother of the defendant conveyed to the latter certain real estate, and that such conveyance was made with intent to hinder, delay and defraud creditors, etc.; that upon a judgment rendered in behalf of one Dunn against Robert H. Sloan, execution issued and a sale of the land thus conveyed took place; at which sale plaintiff became the purchaser, receiving a deed from the sheriff therefor, etc. The usual relief is then prayed for The non-residence of the defendant having been alleged, publication was made, returnable to the next July term. At that term judgment by default was entered; which was followed at the next February term, by final decree as prayed for. Six days after this disposition of the case, the defendant by his attorneys filed his motion verified by affidavit, to set aside the interlocutory and final decrees, alleging that he had a good defense to plaintiff's action, etc. etc.; that defendant is, and was, at the time of suit brought, a non-resident, had no personal service, nor had he any actual notice of the suit until after the expiration of the previous term; that the names of Anderson & Boulware were entered as appearing at that term for defendant at the instance of Robert H. Sloan, who thought he had some interest in...