Kemp v. Mitchell

Frazer, C. J.

This case was commenced, hy the appellant in the Circuit Court. His complaint alleges that the appellees, in October, 1863, obtained in the Court of Common • Pleas a judgment against him by defaultfor$l,785, together with a decree directing the sale of certain real estate to satisfy the same, which was alleged and found to be for purchase money of the same lauds sold by the Mitchells to the present plaintiff, and was adjudged to be a vendor’s lieu thereon, and to be satisfied as .such. The present complaint admits the indebtedness, but alleges that it was for borrowed money, and that the land was conveyed to the Mitchells merely as security for the loan, and that the averments upon which the judgment in favor of /the Mitchells was rendered concerning a sale of the land to him were false, and, in general terms, that that judgment was obtained by fraud. He further avers, though there was a summons hy copy, that he had “ uo notice or information ” of the pendency of the suit until long after the judgment was rendered, and that he has a good defense, and that the present judge of the Common Pleas was the attorney for the Mitchells in obtaining the judgment. The prayer is that the judgment be opened, and he be allowed to defend, and for all other proper relief.

A demurrer to the complaint, assigning for causes: 1. That the Circuit Court had no jurisdiction; and 2. that the same is not sufficient in law to entitle the plaintiff to the relief demanded, was sustained, and upon that ruling error is assigned.

W. R. Harrison and W. S. Shirley, for appellant. J. V. Mitchell, for appellees.

The second cause of demurrer raises no question whatever; it is unknown to our laws, and the code is plain that a demurrer assigning only such a cause must be overruled. 2 G. & TL, § 50, p. 77. The plaintiff may, upon the facts averred, be entitled to relief not demanded, but that question cannot be made by demurrer.

The other question, that of jurisdiction, will be decided for the appellee. The complaint is not, as it seems to be regarded, for a review. -It has not a single essential characteristic of a complaint for review. It neither alleges error of law appearing in the record, nor material new matter discovered since the rendition of the judgment. These are the only grounds for a review. . 2 Gi & EL § 587, p. 280. It is a mere application to set aside a default and judgment, and to be allowed to defend. It is not an original suit which may be brought, as provided by statute, (2 G. & II., § 9, p. 21,) in the Circuit Court, where the judge of the Common Pleas is interested, but it is an application which must be made to the court which rendered the judgment. It comes, we think, under the ninety-ninth section of the code, and is summary, requiring no complaint. The action of the court below accomplished the right result, and the judgment must therefore be affirmed, with costs.

W. Morrow, R. M. Goodwin and W. H. Hay, for appellant. L. Sexton, for appellee.