Wright v. Barr

• Decision Date: 31 August 1873
• Citation: 53 Mo. 340
• Parties: THOMAS WRIGHT, Plaintiff in Error, v. ADAM J. BARR, Defendant in Error.
• Court: Missouri Supreme Court

53 Mo. 340

THOMAS WRIGHT, Plaintiff in Error,

v.ADAM J. BARR, Defendant in Error.

Supreme Court of Missouri.

August Term, 1873.

Error to Ray Common Pleas Court.

J. W. Shotwell, and J. W. & J. E. Black, for Plaintiff in Error, cited:

2 Story's Eq., § 885; 1 Dan. Ch. Pr., 725; Dale vs. Roosenvelt, 5 Johns. Ch., 174; Matter of Merritt, 5 Paige, 125; Miller vs. McCaw, 7 Paige, 457; How vs. Montell, 28 Ill., 478; Atlantic Delaine Company vs. Tredick, 5 R. I., 171; Furguson vs. Fisk, 28 Conn., 511; Weed vs. Grant, 30 Conn., 74; Dehon vs. Foster, 4 Allen, 545; Davis vs. Hoopes, 33 Miss., 173.

Doniphan & Garner, for Defendant in Error.

I. A judgment upon a note for the direct payment of money, upon written acknowledgment of service upon the summons, has the same force and effect as a judgment by confession, and is absolutely conclusive, and cannot be afterwards impeached or assailed by the party collaterally or otherwise.ADAMS, Judge, delivered the opinion of the court.

This was an action in the nature of a bill in equity, to set aside a sheriff's sale of the plaintiff's undivided interest in certain bonds in Ray county, and to have the title acquired by the defendant at such sale invested in him.

The defendant demurred to the petition, on the ground, that it did not state facts sufficient to constitute a cause of action, and that the petition showed no equity or merit in the plaintiff, and that the averments of the petition were an estoppel to any relief.

The demurrer was sustained and judgment given thereon against the plaintiff.

The facts stated in the petition are substantially as follows:

That plaintiff and defendant had jointly purchased, at partition sale, the lands in question, and had each paid his share of the first payment of the purchase money, and executed their joint note for the balance of the purchase money; that defendant preferred to pay all the balance of the purchase money and wait for plaintiff's share, and take his note for the same, which he did; that after the note became due, the defendant filed a suit on the same, in the Ray Circuit Court, of which he was clerk, and issued a writ of summons and took it to St. Louis where the plaintiff was, and falsely and fraudulently represented to plaintiff, that he wanted to procure a judgment on the note merely to secure the debt and put it in a better shape, in case of his death, in regard to classification; that if the plaintiff would acknowledge service on the summons, he would have the judgment entered and hold it up; that the plaintiff thereupon acknowledged service of the writ, with the understanding that he was to be notified when the defendant wanted his money so that he could pay it; that he was always ready to pay, but the defendant preferred holding the judgment; and on his faith in the assurance, that no action would be taken on the judgment without notice to him, the plaintiff removed to the State of Kansas, where he remained for some two years; that after he went to Kansas he wrote to defendant, and continued to write to him from time to time, to know if he wanted his money, saying that it was ready for him any time; but he received no reply to his letters; that finally ...