day of 19 at aforesaid, the 2. That on the plaintiff commenced an action against the defendant before the said justice, by filing his complaint, and causing summons to be issued by said justice on that day, for the recovery of [designate cause of action], which summons was duly and personally served on the defendant. 3. That on the day of 19 in said action, the plaint iff recovered judgment, which was duly given and made by said justice against the defendant, for the sum of $ , to wit, $ for interest from the said date, and 4. [Same as paragraph 2, form No. 850.] [Concluding part.] $ 365. ANSWERS. FORM No. 856-Defense of payment. $ [Title of court and cause.] The defendant alleges that on the day of before the commencement of this action, he paid to the plaintiff in full settlement and discharge of said judgment. [Concluding part.] FORM No. 857-Defense based upon vacation of judgment. [Title of court and cause.] [After introductory part:] That on or about the made, the said court duly made and entered an order setting aside and vacating the said judgment described in the complaint, and that said judgment is void and of no effect. [Concluding part.] FORM No. 858-Defense that judgment was obtained by fraud. [Title of court and cause.] The defendant answers to the plaintiff's complaint [or petition]: 1. That the judgment therein alleged was obtained by the plaintiff against the defendant by fraud and misrepresentation, in this: [Here state specifically the facts constituting such fraud; as, for example:] that the plaintiff, after the action in the complaint [petition] named was begun, came to this defendant, and with the pur Jury's Pl.-92. pose of preventing the defendant from defending said action, falsely and fraudulently told him that he, the said plaintiff, intended to and would dismiss said action, and requested that defendant should not defend the same, and represented that the defendant need not be at any cost or expense therein. 2. That this defendant, in consequence of and relying upon said representations, did not appear in, or defend, said action at the term. of court next thereafter held, and the plaintiff fraudulently, and without the defendant's knowledge, appeared and prosecuted said action in the defendant's absence, and took said judgment by the default of the defendant, so as aforesaid fraudulently procured. Wherefore, the defendant prays that said judgment be adjudged void, and the plaintiff be forever restrained from enforcing it, and for defendant's costs of this action. C. D., Attorney for defendant. FORM No. 859-Defense of invalidity of foreign judgment. [Title of court and cause.] The defendant answers to the plaintiff's complaint [or petition]: 1. Defendant alleges that no process was served upon him in the action mentioned in the complaint [or petition]; and that he never appeared in person or by attorney in said action. [Concluding part.] FORM No. 860-Defense of invalidity of judgment against non-resident. [Title of court and cause.] The defendant answering the plaintiff's complaint [or petition], alleges: 1. That the action in which the supposed judgment against him was alleged to have been recovered arose upon an alleged contract. 2. That when said action was commenced, this defendant was a non-resident of the state of and a resident of or 3. That he never was personally served in the state of elsewhere, with summons in said action, and never appeared therein. 4. That no order for publication of the summons in that action was ever made. [Or state other facts showing failure to obtain jurisdiction.] [Concluding part.] Form of motion to set aside the judgment in an action for an accounting: Childs v. Kansas City etc. R. Co., 117 Mo. 414, 416, 23 S. W. 373. Form of petition in an action to set aside a judgment of foreclosure, and to restrain proceedings thereunder: Lumpkin v. Williams, 1 Tex. Civ. App. 214, 219, 21 S. W. 967. Form of petition in an action to set aside two judgments: Lantis v. Davidson, 60 Kan. 389, 392, 56 Pac. 745. Form of petition in an action to vacate a judgment: Schnitzler v. Fourth Nat. Bank, 1 Kan. App. 674, 675, 42 Pac. 496. § 366. ANNOTATIONS. Remedy against an illegal Judgment.-Where the statute affords a full, complete. and adequate remedy against an illegal judgment, by authorizing the aggrieved party to proceed by motion to vacate and set aside, and permitting an appeal from an order entered upon such motion, any one who has attacked a judgment by motion to vacate, and has failed to prosecute an appeal from the denial of his motion, can not subsequently maintain an action to cancel the judgment, since the question of the validity of the judgment is res adjudicata: Chezum v. Claypool, 22 Wash. 498, 61 Pac. 157, 79 Am. St. Rep. 955; McCord v. McCord, 24 Wash. 529, 64 Pac. 748; Bunch v. Pierce County, 53 Wash. 298, 101 Pac. 874, 875. Decree in proceeding to vacate former judgment.-A proceeding under the Arkansas statutes (Kirby's Dig. §§ 4431-4437) to have a judgment set aside which was rendered at a former term is equivalent to an independent action instituted for that purpose, and the order of the court, after vacating the judgment or refusing to do so, is final, in the sense that it determines the rights of the parties under the judgment, even though after vacating the judgment it leaves the original still pending for further proceedings: Ayers v. Anderson-Tully Co., 89 Ark. 160, 116 S. W. 199, 200, citing the following authorities from states having similar statutes: Huntington v. Finch, 3 Ohio St. 445; Braden v. Hoffman, 46 Ohio St. 639, 22 N. E. 930; Weber v. Tschetter, 1 S. Dak. 205, 46 N. W. 201; Joyce v. New York, 20 How. Pr. 439; Hen. derson v. Gibson, 19 Md. 234; Curtiss v. Bell, 131 Mo. App. 245, 111 S. W. 131. A judgment procured by fraud may be set aside upon motion: Hamilton v. Mc Lean, 139 Mo. 678, 41 S. W. 224; Mayberry v. McClurg, 51 Mo. 256; Cross v. Gould, 131 Mo. App. 585, 110 S. W. 672. A scire facias proceeding to revive the lien of a judgment is not the institution of a new suit. No petition is required in such case, nor is the service of the usual process of summons or a copy of the petition required: Bick v. Vaughn, 140 Mo. App. 595, 120 Mo. 618, 620; Sutton v. Cole, 155 Mo. 206, 55 S. W. 1052; Bick v. Tanzey, 181 Mo. 515, 80 S. W. 902; State v. Hoeffner, 124 Mo. 488, 28 S. W. 1; Sutton v. Cole, 73 Mo. App. 518. An original petition can in no respect be treated as a scire facias proceeding, even though there are references therein to a revival and renewal of the lien of a former judgment; for in a scire facias proceeding in which the lien of a judgment is sought to be revived and renewed, no petition whatever is required, whereas a petition must be filed when the suit is on a judgment: Bick v. Vaughn, 140 Mo. App. 595, 120 S. W. 618, 620, construing section 3715 Mo. Rev. Stats. 1899,-Ann. Stats. 1906, p. 2083. TITLE XIII. Actions for Negligence. Chapter CV. Employers' Liability Cases, and Actions against Employees . CVI. Negligence of Various Persons Owing a Con tractual Duty Page 1448 1461 CVII. Negligence of Carriers of Property or Messages 1471 to Passengers not Resulting in Death....... 1480 CIX. Death by Wrongful Act ..... .. 1494 CX. Negligence of Carriers.-Actions by Persons .... CXI. Miscellaneous Cases of Negligence. 1506 1529 CHAPTER CV. Employers' Liability Cases, and Actions against Employees. § 367. Complaints [or petitions].... ... Form No. 861. By employee against railroad company, for Page 1449 1449 1450 Form No. 866. Defense based upon failure of plaintiff to give Form No. 867. Denial, and defense of contributory negligence $367. COMPLAINTS [OR PETITIONS]. FORM No. 861-By employee against railroad company, for damages resulting from injuries sustained in operation of defective machinery. [Title of court and cause.] Plaintiff complains of defendant, and for cause of action alleges: 1. That the defendant is, and continuously during all the times hereinafter mentioned has been, a corporation organized under the laws of the state of ; that it is, and continuously during all said times has been, the owner and in the possession of a certain railroad known as Railroad, and of the tracks, cars, locomotives, rolling-stock, and other equipment and appurtenances thereto belonging, and is, and was during all said times, using the same for the transportation of goods and passengers for hire. day of 2. That the plaintiff, on the 19 was in the employ of the defendant, as engineer upon a locomotive steamengine, used and operated by defendant on its said tracks. 3. That said steam locomotive was defective and insecure, and the boiler thereof was defective, unsafe, and dangerous, but of such defects plaintiff had no knowledge, nor means of knowledge, information, or notice thereof; that by reason of said defects, and by reason of the failure, through the carelessness and neglect of the defendant to furnish a safe and secure steam locomotive to be used by the plaintiff in his said employment, on the said date, and while the plaintiff was engaged in the performance of his duties as such engineer under said employment, the boiler of said steam locomotive exploded, whereupon large quantities of steam and hot water escaped therefrom, and, without any fault or negligence on his part, plaintiff was thereby severely scalded and injured about the face and hands and body. 4. That by reason of said injuries sustained as aforesaid plaintiff became, and for a long time thereafter remained, ill; that said injuries sustained as aforesaid are of a permanent nature, and that ever since receiving the same the plaintiff has been, and will hereafter be, prevented thereby from pursuing his regular employment or business; that by reason of said injuries plaintiff was obliged to engage the services of a physician, and was further obliged to expend in hospital service and for medicines the sum of $ ; and that, |
