Field v. Sanderson

Practice — Foreign Judgment — Continuance.—-The fact that the plaintiff in the original judgment has taken out execution thereupon and levied upon and advertised for sale the lands of the defendant situate within the jurisdiction in which the judgment was entered, affords no ground for a continuance of the suit upon such foreign judgment, a? it shows no present defence to the action. Judgment — Fraud—Evidence.—The defendant in the judgment is concluded thereby, and he cannot under the allegation that the judgment was obtained by fraud, re-open the issues determined by that judgment, and give testimony to impeach that given upon the trial.

Appeal from St. Louis Common Pleas Court. Plaintiffs sued as assignees of John M. Keep, who bad recovered a judgment against the intestate as garnishee of Manchester & Wentworth, in Wisconsin. Defendant pleaded fraud in obtaining the judgment. The defendant presented an affidavit and asked for a continuance of the cause, setting forth that the plaintiff had issued execution upon his judgment in Wisconsin to the sheriff of Rock county, and that said execution had been levied upon lands belonging to the defendant, and that said lands were advertised for sale by said sheriff on June 1st, 4864^ and that the lands levied upon were worth $5,000. This affidavit was presented May 8,~l-86-T-. 06£ This motion for continuance the court overruled. The parties then went to trial. Plaintiffs offered in evidence the record of the judgment of John M. Keep v. Sanderson, as garnishee of Manchester & Wentworth, and provei^gthe assignment of said judgment to the plaintiff. •# * Defendant, to prove the issue upon his part, offered a complete transcript of the record, containing the bill of exceptions taken at the trial of the original cause in Wisconsin ; which was excluded by the court, and defendant excepted. Defendant then offered several depositions, which were excluded by the court, and defendant excepted. This bill of exceptions and the depositions were offered by defendant to prove the issue that the judgment was obtained by the fraud of the plaintiffs. Defendant filed his motion for a new trial, on the ground of the overruling the motion for a continuance, the exclusion of the depositions, and the ruling out of the defence. This motion was overruled. Sanderson died May 30th, 1861; his administratrix was made a party, and appealed. I. The court below erred in overruling the motion for a continuance. While suing upon the judgment, the plaintiffs had issued execution upon the judgment in Wisconsin, and had levied the same xipon lands of the defendant in Wisconsin, and had advertised the same for sale, and both proceedings were going on together. By the record of said execution and the sheriff’s return, it appears that $3,000 were made upon that levy ; said record is herewith filed. In suits upon judgments, it is usually alleged that the party has received no satisfaction, nor has he issued execution thereupon. (2 Chit. PI. 483.) The levy upon property is a satisfaction pro tanto, and the continuance should have been granted that the defendant might have had the opportunity of pleading the satisfaction as far as the property levied upon paid the judgment. This was not allowed the defendant. II. The defendant should have been allowed to show that the judgment was obtained by the fraud of the plaintiffs. The court refused the evidence. That a judgment was obtained by fraud is a good defence. (Miles v. Jones, 28 Mo. 87.) Fraud vitiates judgments, deeds, and all proceedings. (Duchess Kingston’s Case, 20 How. St. Tri. 544; Fermor’s Case, 8 Coke, 80 ; Paxton v. Cobb, 2 Miller, Lou. It. 137.) I. The court below did not err in overruling the motion for a continuance. (30 Mo. 462; McLawrine v. Monroe, adm’x.) II. The court below did not err in ruling out the depositions offered by appellant. The judgment sued upon was regular, was rendered by the Circuit Court in Wisconsin. The said court had jurisdiction of the subject matter and over the parties in said suit. (Grover v. Grover, 30 Mo. 400 ; Destrehan v. Scudder, 11 Mo. 484; Warren v. Lusk, 16 Mo. 102.) It was held that in a suit upon a judgment rendered in another State, where the record showed that tt& defendant appeared by attorney, it was inadmissible to dispute the attorney’s authority, although it appeared by the record that the defendant was not served with process.