Martin v. McLean

Wagner, Judge,

delivered the opinion of the court.

The point that Martin was incapable of being made a party to the action when the judgment was rendered against him upon which the land was sold, cannot be considered here. The record shows that he had notice in the manner prescribed by statute, that the court acquired jurisdiction; and the judgment is there* fore valid till reversed or annulled in a proceeding instituted for that purpose. No inquiry as to its binding force can be had collaterally. The question raised when the case was here before on demurrer, was whether the action was maintainable, and we held that, it was. (McLean v. Martin, 45 Mo. 393 .)

Upon a re-trial in the Circuit Court, the plaintiff amended his petition and set forth therein two counts. The first count seeks to recover for money paid at a sheriff’s sale and applied in satisfaction of a judgment against the defendant. The second count prays for a recovery on account of improvements made on the land by the plaintiff’s grantee while in possession. The defendant in his answer denies his liability on the cause as embraced in the first count of the plaintiff’s petition; and as a defense to the second count, he claimed by way of set-off and recoupment for rents and profits of the land upon which it was alleged the improvements were made, and he also claimed damages for timber cut and taken away.

The court, upon hearing the evidence and proofs, gave judgment for the plaintiff upon the cause of action as embodied in the first count, and dismissed the petition as to the second count; also dismissing defendant’s claim for set-off and recoupment as applied to that count. The action of the court in giving judgment for the plaintiff-on the first count is in accordance with the judgment rendered by this court when the case was here before, and will consequently not be further considered.

The defendants claim for set-off arid recoupment of damages-was not pleaded to the first count, but to the second one; and *363 therefore, when the second count was dismissed it.carried the defense with it, as each count and the defense thereto constituted i separate and distinct cause of action and defense. (Nordmanler v. Hitchcock, 40 Mo. 178 .)

As the plaintiff did not appeal from the ruling of the court in dismissing part of his petition, the defendant cannot complain, as his rights were in nowise prejudiced. In point of fact, however, we have examined the record, and the evidence induces us to believe that defendant had no injustice done him. The record here presents no error, and the judgment must therefore be affirmed.

Judge Bliss concurs. Judge Adams absent.