Leach v. Kohn

Cole, J. — Both the demurrer and the motion to dissolve were properly sustained. The plaintiff herein was duly notified of the action wherein the judgment was recovered. He appeared in it. He makes no satisfactory showing for his fail [146] ure to file Ms answer, as per Ms agreement shown by the judgment record. Tbe circuit court had jurisdiction of the cause of action and of the parties, one of the defendants being a resident of Scott county. Fraud cannot be predicated upon the fact of bringing an action in a court having jurisdiction of the cause. If the suit was brought in the wrong county the venue might have been changed to the proper county on motion therefor, and a failure to make such motion was a waiver of the right to change. Rev., § 2802, et seq. The fact that the terms of the circuit courts are fixed by the judges, and not by statute, and that hence the time of holding may not be known to parties living remote, has no force since this plaintiff actually appeared in the action. This plaintiff may be “swindled,” but if so it is in part at least the result of Ms own failure to properly and timely attend to Ms business. The public tranquillity, as well as the credit and faith due to judicial proceedings, require that a party having had one fair opportunity to maintain his rights in court shall thereafter hold his peace. Affirmed.