Stewart v. Caldwell

• Decision Date: 31 January 1874
• Citation: 54 Mo. 536
• Parties: TENNESSEE STEWART, et al., Defendants in Error, v. JAS. R. CALDWELL, et al., Plaintiffs in Error.
• Court: Missouri Supreme Court

54 Mo. 536

TENNESSEE STEWART, et al., Defendants in Error,

v.JAS. R. CALDWELL, et al., Plaintiffs in Error.

Supreme Court of Missouri.

January Term, 1874.

Error to Henry Circuit Court.

Ladue & Vance, for Plaintiffs in Error.

I. The petition states a good cause of action in equity. (Harris, et al. vs. Terrell's Ex'r, 38 Mo., 421.)

II. A judgment collusively or fraudulently procured should be set aside at the instance of the party against whom it is procured. (Miles vs. Jones, 28 Mo., 87; 19 How. Prac., 289; 21 Barb., 9; 26 Barb., 262.)

III. The allegations of the petition are ample and sufficient to entitle the plaintiffs to a hearing in a court of equity. (Sullivan vs. Burgess, 37 Mo., 300.) The allowance being obtained by fraud, it can only be set aside in a Court of Equity, (23 Mo., 95; 15 Mo., 225; 20 Mo., 87; 14 Mo., 116.)

Wright & Boone, for Defendants in Error.

I. The petition is radically defective, because it shows upon its face, that plaintiffs in error had a full and adequate remedy at law. The judgment of the Probate Court, in allowing the claim complained of, and which is sought to be set aside, was a judgment from which an appeal might have been taken. (Wagn. Stat., 119, § 1.) Hence, plaintiff cannot resort to equity for relief. (Cabanne vs. Lisa, 1 Mo., 683; Janney vs. Spedden, 38 Mo., 375.)

II. The order of the Probate Court for the sale of lands to pay debts, is a judgment at law, from which an appeal may be taken. (Frye vs. Kimball, 16 Mo., 9; Wolf, et al., vs. Wohlien, et al., 32 Mo., 124.)

SHERWOOD, Judge, delivered the opinion of the court.

This was a suit, in the nature of a bill in equity, brought in the Henry County Court of Common Pleas, by the heirs at law, who were the children and grandchildren, of John R. Elliott, deceased, to set aside a certain order and judgment of allowance, made and entered in the Probate Court of said county, in favor of defendant, Jas. R. Caldwell, and against the estate of said decedent.

The petition in substance alleges that John R. Elliott, the decedent, died seized and possessed of a considerable amount of real estate, which had descended to and was held by the plaintiffs as tenants in common; that defendant, Henry Shafer, was appointed administrator of said decedent's estate, and, as such, took charge of and proceeded to administer upon the same; that the allowance in question was obtained and entered by fraud and fraudulent collusion between the said defendants, Caldwell and Shafer; that Caldwell knew that he had no demand against the estate, and that the same was not indebted to him, and the administrator, knowing this also, waived notice of, and made no defense against the claim, and concealed the allowance thereof from plaintiffs, in order to prevent them from showing to the court, that the same was fraudulent and unjust, and in consequence of such concealment, plaintiffs knew nothing of such allowance, until long after the fraudulent design was effectuated; that some time before the death of decedent, defendant, Caldwell, sold and conveyed to said deceased, certain lands in Henry County, and received, as the partial consideration therefor, certain promissory notes and accounts, which were transferred to him without recourse, and at the risk of the transferee, which arrangement was entered in a written contract made at the time; that Caldwell, for the purpose of more effectually carrying into effect his said fraudulent purpose of obtaining the said fraudulent allowance, surreptitiously and wrongfully took possession of said instrument, which was then made by and between deceased and himself, and has secreted or else destroyed the same; that Caldwell based his fraudulent pretenses for an allowance against said estate, on the ground that he was unable...