Powell v. January , 35 Mo. 134 ( 1864 )

Bates, Judge,

delivered the opinion of the court.

On the 30th day of October, 1860, in the Audrain Circuit Court, four persons, Abat, Lackland, Williams and Cardwell, confessed a judgment in favor of January, Brother and Noel.

On the 29th day of April, 1863, Powell, who had on the 6th day of May, 1862, recovered a judgment against said Abat and Lackland in the same court, filed a motion to set aside said judgment in favor of January and others, upon the ground that the judgment was entered wrongfully, in that there was not filed any affidavit of the plaintiffs, that the power of attorney of the defendants was insufficient, not duly acknowledged, and that there was no note, bond or bill of exchange filed in said cause.

The motion was sustained by the court, and the judgment so confessed was set aside.

There was error in this action of the court; Powell had no judgment against Williams and Cardwell, and he is therefore not injured or affected by January’s judgment against them, and could not in any manner require the judgment aginst them to be set aside or vacated, and the court could not (at any rate upon this motion) set aside the judgment as to some defendants and retain it as to others. Whatever relief Powell was entitled to, he could get by civil action.

My own opinion is, that a court should in no case, at the instance of a subsequent judgment creditor, set aside a judgment upon motion; but that the remedy is, in every case, by regular civil action. The opinion of the court, however, applies only to this case ; and it is based upon the fact that Powell’s judgment was against Abat and Lackland only, and not against Williams and Cardwell.

The judgment of the Circuit Court.(that the judgment of January, <fcc., against Abat, Lackland, Cardwell and Williams be set aside and forever held for naught) is reversed.

Judges Bay and Dryden concur;