Laws

So where a part Post Date: Mon, 28 Jul 2008 5:40:10 +0000
Generally, however, the retrial is under the con- trol of the chancery court, which mere- ly directs the trial of the issues in- volved as other issues out of chancer Y Knifong v, Hendricks, 2 Gratt ( Va) 213; Wynne v Newman, 75 Va 8 N See Freeman Judgments, 485 But see Wierich v De Zoya, 7 111 385 ; Pea- gram v King, 2 Hawks (N Car) 605 In Kincade v Conley, 64 N Car 387, it is thus stated: "Courts of equity relieve the defendant by a de- Ordering Acknowledgment of Satisfactio N The mode and extent of the relief are, however, varied in accordance with the terms of the prayer and the particular circumstances of each cas e Thus equity may, in some circumstances, decree that a party shall cancel or acknowledge satisfaction of a judgment. 2 Compelling Account for Amount Collecte d Or where the judgment has been enforced, it may hold him as trustee and compel him to ac- count for the amount collecte d 3 Enjoining a Part. So where a part of the judgment has been paid, a perpetual injunction will be decreed as to that part; 4 and where the judgment is in excess of the amount due, an injunction will restrain the creditor from collecting the excess onl Y 5 Improper Use of Judgment.

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In the vast multitude Post Date: Mon, 28 Jul 2008 5:28:13 +0000
Equity will also, it is said, grant relief against a fraudulent or irregular use of a judgment, though prop- erly obtaine d 6 Temporary injunctio N A temporary injunction is sometimes resort- ed to where the circumstances seem to require it; r but it is said that a court of equity, unlike a law court, cannot decree relief upon term S 8 Iv CHABACTERISTICS OF BOTH CLASSES OF BILLS 1 Parties A IN GENERA L Bills to impeach decrees or enjoin judgments should bring before the court all the parties to the original judgment or decree which is the subject of attac K 9 b PARTIES PLAINTIFf As a general rule, only those who are parties to a judgment or decree, or their privies, 1 or those who are not actual parties but who have a direct and substantial interest in the result, 2 can maintain a bill in equity to enjoin the one or impeach the otheR3 stranger to Judgment. But a stranger to a judgment or decree fraudulently procured for the purpose of prejudicing his rights may obtain relief in equit Y 4 Harwood v Cincinnati, etc, RCo, 17 Wal L (U S) 80; Wickliffe v Eve, 17 How (U S)47o; Sahlgaard v Ken- nedy, 13 Fed Rep 242 Hawley, d J, in Ralston v Sharon, 51 Fed Rep 702, thus emphatically states the principle: " It is contrary to every principle of equity jurisprudence for this or any other court to set aside a judgment or decree upon the ground of fraud, or any other cause,- without having all the parties to such judg- ment or decree before the court. In the vast multitude of authorities cited by complainant's counsel, no such case has been brought to the attention of the court, and it is safe to say that no such case can be found in the book S" Such a complaint is not liable to the objection that there is an improper joinder of several causes of action against different person S It sets up one cause of action against all of the M Howse v Moody, 14 Fla 59 Thus, in a bill to reform a consent decree which by inadvertence or mis- take does not speak the intention of the parties, all parties to the decree must be made parties to the bill, to reform it.

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4 Joint Judgment Debtor S Post Date: Mon, 28 Jul 2008 5:11:24 +0000
Lester v Mathews, 58 Ga 1 Gilliland v Cullum, 6 Lea (Tenn) 521; Bell v Johnson, in 111 It was held in Allison v Drake, 145 111 500, that, where one tenant in com- mon agreed with a solicitor to pay him a fixed price to get a partition of the estate, and the solicitor took a decree for a much larger sum as his fee, this was a fraud on his client; but that a defendant who was not a privy to this contract could not take advantage of the fraud to file a bill to impeach the decre e 2 Lester v Mathews, 58 Ga 403; Stone v Town e 91 U S 341 In Osborn v Michigan Air Line RCo, 2 Fli P (U S) 503, it was said, " It has been frequently ruled in the courts of the United States * * * that a person having an interest, though not a party to the suit, may intervene to assert his rights, without reference to the citizenship of the partie S" Citing- Freeman v Howe, 24 How (U S) 460 They must show a bona fide interest in the matter litigated, and that their rights are really prejudiced by the fraudulent judgment or decre e Mayes v Woodall, 35 Tex 687; Rotzein v Cox, 22 Tex 62 Ge N StatMinnesota, 1878, C 66, 285, authorizingthe "party aggrieved" to bring an action to set aside a judgment obtained by fraud of the prevailing party, does not authorize such a suit by one not a party to the original action, although he may be directly interested in the result. Stew- art v m Duncan, 40 Min N 410 Stockholder S Where the officers of a corporation fraudulently consent to a judgment or decree, the stockhold- ers may subsequently file a bill to vacate the same within a reasonable ti Me Pacific RCo v Missouri Pac RCo, 12 Fed Rep 641, in U S 505 3 Marriner v Smith, 27Cal649; Markley v Rand, 12Cal275; Robin- son -v Thompson, 30 Ga 933; Harper v Hill, 35 Mis S 63; Shufelt v Shu- felt, 9 Paige ( N Y) 137; French v Shotwell, 5 John S C H ( N Y) 554, 6 John S C H ( N Y) 235; Whitman v Willis, 51 Tex 429 Compare Hurd v Eaton, 28 111 122; Osborn v Michi- gan Air Line RCo, 2 Fli P (U S) 4 Schuster v Rader, 13 Colo330; Busenbark v Busenbark, 33 Ka N 572; Bergman v Hutcheson, 60 Mis S 872; Barker v Todd, 15 Fed Rep 265; Sumner v Marcy, 3 Wood b M (U S) 105; Mechanics' Nat Bank v Burnet Mfg Co, 33 N J E Q 486; Dunklin v Harvey, 56 Ala 177; New- lin v McAfee, 64 Ala 357; Style v Martin, I C H Ca S 152 Compare Gott- lieb v Thatcher, 34 Fed Rep 435 Eeceiver of Corporatio N An action to set aside a judgment against a corporation in the hands of a receiver is properly brought in the name of the receiveR1 C PARTIES DEFENDANT in General The plaintiff in the judg- ment or decree sought to be impeached is, of course, a necessary party defendant ; a or, if he is dead, his personal representatives 3 and, generally, all others substantially interested in the proceed- ings sought to be set aside or improperly affected by it. 4 Joint Judgment Debtor S A judgment at law may be enjoined in equity as to one defendant, but remain in force as to the other; 5 but where one of two joint judgment debtors sues to have the judgment perpetually enjoined, the other should be made a party to the suit.

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The pendency of proceedings Post Date: Mon, 28 Jul 2008 4:54:56 +0000
6 2 Jurisdiction A WITHIN THE STAT e Questions of juris- diction frequently arise between co-ordinate courts of the same state, and it has been held that a bill to enjoin a judgment or im- peach a decree should be filed in the equity court of the county or district in which such judgment or decree was rendere d 7 Judgments in Fraud of Creditors may be set aside by the creditor S Palmer v Martindell, 43 N J E Q 90; McPar- land v Bain, 26 Hun ( N Y) 38; Beattie v Pool, 13 S Car 379; even though at the time of the filing of the bill the judgment had been the foun- dation of proceedings in another stat e Edson v Cumings, 52 Mich 52 1 Whittlesey v Delaney, 73 N Y 57 I But a bill to set aside as fraudulent a foreclosure decree and sale against a corporation may be filed in the name of the corporation, and not necessarily by its receiver or through his author- ity after his functions are terminated in the foreclosure proceedin g North- ern Illinois Coal, etc , Co v Young, 12 Fed Rep 809, II Bis S (U S) 331 2 Harwood v Cincinnati, etc, RCo, 17 Wal L (U S)78 But one who is innocent of the fraud, and not a party to the judgment, and claims nothing by it, is improp- erly joine d McNair v Toler, 21 Min N 175 3 Suit to Enjoin Public Nuisanc e If a plaintiff in a suit to enjoin a public nuisance dies, an action to set aside the decree therein should be brought against the state or any citizen who could have been plaintiff in the origi- nal suit. Geyer v Douglass, 85 Iowa To a bill filed to set aside as fraudu- lent a decree and partition of property thereunder made by commissioners appointed by the court, it is not error, though, perhaps, not necessary, to make the commissioners partie S Adair v Cummin, 48 Mich 375 In the Appellate Court it is too late for the defendant to object that other parties should be brought i N Cham- bers v Robbins, 28 Con N 552 5 Kennedy v Evans, 31 111 258 6 Bowers v Tallmadge, 16 How Pr ( N Y Supreme Ct) 325; Cum- mins v Boyle, i J J Marsh (Ky)48 O Except for good cause state d Gates v Lane, 44Ca L 392 Contra, Merriman v Walton, 105Cal403 Where a separate judgment is ren- dered against each of two joint tort- feasors, neither of them can be per- petually enjoined while both remain unsatisfied and in force, although one of them has been assigned to a third perso N Meixell v Kirkpatrick, 25 Ka N 19 United States as Defendant The United States cannot be enjoined from enforcing a judgment in its favor, for such a proceeding falls within the principle that the government, being sovereign, is not liable to be sued ex- cept by its own consent, given by la W Hill v U S, 9 How (U S) 386 7 Shrader v Walker, 8 Ala 244 So in states having no separate tech- nical equity procedure it is held that an action to annul a judg-ient must be b BEYOND THE STAT e But although a court of equity will act cautiously in so doing, 1 it yet has the unquestioned power to look into the judgments and decrees of courts of other jurisdic- tions, whether state or federal or altogether foreign, and relieve against them for causes previously discussed in this articl e* brought only in the court rendering it, the Circuit or Superior Court of one jurisdiction having no power to vacate the judgment of a co-ordinate court of another jurisdiction or annul execu- tion issued thereo N State v Judge, 42 La An N 71; Stevenson v Weber, 29 La An N 105; Dufossat v Berens, 18 La An N 339; Hollinger v Reeme, (Ind, 1894), 36 N E Rep 1114; Plunkett v Black, 117 Ind 14; Jones v Ahrens, 116 Ind 490; McConnell v Raive (Ky, 1886), i S W Rep 582; Reynolds v Dunlap ( Ga, 1894), 19 S e Rep 906; Emporia First Nat Bank v Geneseo Town Co, 51 Ka N 215; Cardinal v Eau Claire Lumber Co, 75 Wi S 404; Coon v Seymour, 71 Wi S 340; Orient In S Co v Sloan, 70 Wi S 611; Fenske v Kluender, 61 Wi S 602; Parish v Marvin, 15 Wi S 247 But see Langridge v Judge, 46 La An N 29 In Mallory v Daubar, 83 Ky 239, it was held that section 285 of the code, providing that " an injunction to stay proceedings on a judgment shall not be granted, in an action brought by the party seeking the injunction, in any other court than that in which the judgment was rendered," applies not only to the judgment debtor, but to all parties who seek to stay proceedings on the judgment. The pendency of proceedings to open a judgment in the courts of one county will prevent the courts of an- other county from taking jurisdiction of a bill for relief against the judg- ment.

Autor of the post: Undefined

A court of equity Post Date: Mon, 28 Jul 2008 4:36:50 +0000
Smith v Kammerer, 152 Pa St 98 Contr A A doctrine contrary to that of the foregoing cases obtains in Ten- nessee, where it has been held that the chancery court of one county may enjoin execution of a decree wrong- fully taken in the chancery court of another count Y Douglass v Joyner, I Baxt (Tenn) 32 But see Deaderick v Smith, 6 Humph (Tenn) 138 It has also been held in Kansas that a stranger may enjoin a fraudulent judgment affecting his rights in the county where its enforcement is at- tempted, though it may have been ren- dered in another count Y Busenbark v Busenbark 33 Ka N 572 Where Court Rendering Judgment had no Jurisdictio N The limitation of this doctrine appears to be that where the judgment is void for want of jurisdic- tion, as if the defendant therein had not been served with process, the ap- plication for relief need not be confined to the court rendering the judgment. Arnold S Hawley, 67 Iowa 313; Remer v Mackay, 35 Fed Rep 86 Impeaching Decree of Appellate Court. A court of equity of first instance has exclusive jurisdiction of a bill to impeach a decree or enjoin a judgment of the court of last resort of the same stat e Kincaid v Conly, Phi L E Q ( N CaR) 270; Kincade v Conley, 64 N Car 387; Massie v Mann, 17 Iowa 131 See Dringer v Receiver, 42 N J E Q 573; Shedden v Patrick, i Mac Q H L Ca S 535 And this bill may be filed without leave of the appellate court.

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If the proceeding is merely Post Date: Mon, 28 Jul 2008 4:19:09 +0000
Kincaid v Conly, Phi L E Q (N Car) 270 1 Sahlgaard v Kennedy, 13 Fed Rep 242, 4 McCrary (U S) 133 2 Bandon z/ Becher, 3 C L F 479, 9 Bligh, N S 532; Amory v Amory, 12 A M L Reg , N S 585 ; First Baptist Church v Syms, 51 N J E Q 363; Cutter v Kline, 35 N J E Q 534; Van- meter v Jones, 3 N J E Q 520 See also Shedden v Patrick, i Mac Q, H L Ca S 535 The principle on which equity acts in such instances has been well stated in the following cases: Sahlgard v Kennedy, 2 Fed Rep 295, where Nelson, dJ, said: "In all cases where, in a direct proceeding, there are parties before a court other than that in which a decree has been rendered, and it is charged that the decree was fraudulent, the court can entertain jurisdiction, and, if the fraud is proved, can prevent all parties who are before it from enforcing the de- cree, and, of course, from obtaining any advantage by virtue of a sale made thereundeRThe court acts upon the decree and sale through the parties who are before it, not directly upon C STATE AND FEDERAL COURT S Although the United States courts are, by statute, restrained from granting injunctions to stay proceedings in the courts of the state, 1 and although it has been held that the state courts cannot restrain an action or pro- ceeding in the federal courts, or issue an injunction against their judgments, or executions thereon, 2 yet, in accordance with the principle heretofore stated, 3 wherever a judgment or decree has been obtained by fraud, surprise, or the like, a bill may be filed for equitable relief in either the state 4 or the federal courts, 5 the the decree of the other court, but adjudges that, notwithstanding the decree, the parties who obtained it, and those before the court who claim property by virtue of a sale under it, with knowledge of the fraud, shall not appropriate- to their use the prop- erty thus acquire d" In Boulton v Scott, 3 N J E Q 242, it was said: " [This court] will not under- take to review the sentences or judg- ments of other tribunals, to ascertain whether they have erred in the exer- cise of their judicial power or discre- tion, in matters over which they had complete jurisdictio N This is not the province of a court of equit Y It sits not in judgment on the lawful acts of other tribunals however mis- taken those acts may b e It seeks to detect and relieve against fraud in the procurement of such act S It deals with the conscience of parties and not with the opinions of court S" See also and particularly Arrowsmith v Gleason, 129 U S 86; Dringer v Receiver, 42 N J E Q 573; Doughty v Doughty, 27 N J E Q 315, affirmed 'in 28 N J E Q 581 1 " The writ of injunction shall not be granted by any court of the United States to stay proceedings in any court of a state, except in cases where such injunction may be au- thorized by any law relating to pro- ceedings in bankruptc Y" U S Rev Stat, 1878, 720 2 M'Kim v Voorhies, 7 Cranch (U S) 279; Riggs v Johnson County, 6 Wal L (U S) 166; U S v Keokuk, 6 Wal L (U S) 514; Strozier v Howes, 30 Ga 578; Coster v Griswold, 4 Ed W C H ( N Y) 364; English v Miller, 2 Rich E Q ( S Car) 320 3 See II I 2B Beyond the State, supr A 4 Stevens v Central Nat Bank, 144 N Y 50, 23 N Y Supp 1147, 57 Hun ( N Y) 499, n N Y Supp 268; Barry v Brune, 71 N Y 262, 8 Hun ( N Y) 395; Savage v Allen, 54 N Y 458; New York, etc, RCo v Schuyler, 17 How Pr ( N Y Supreme Ct) 464; Dehon v Foster, 4 Allen (Mas S) 550 See Carron Iron Co v Maclaren, 5 H L Ca S 439 5 Robb v Vos, 155 U S 13; Mar- shall v Holmes, 141 U S 589; Arrow- smith v Gleason, 129 U S 86; Johnson S Waters, in U S 667; Bar- row v Hunton, 99 U S 80; Pennoyer v Neff, 95 U S 714; Graver v Faurot, 64 Fed Rep 241; Ralston v Sharon, 51 Fed Rep 707; Amory v Amory, 12 A M L Reg, N S 585 In Osborn v Michigan Air Line RCo, 2 Fli P (U S) 503, it is said: "It is not doubted that, in a proper case, the decree sought to be im- peached by this bill could be im- peached collaterally for fraud in an- other court; but it is believed that no other tribunal can properly take juris- diction of a suit brought for the pur- pose of declaring such decree void, whether for fraud or otherwis e The CircuitCourts of the United States, and the courts of the state, are essentially, as to each other, foreign forum S Neither can entertain a suit brought for the purpose of declaring void a judgment or decree of the other, pre- cisely as neither can entertain a suit brought for the purpose of declaring fraudulent and void a judgment or decree of the Court of King's Bench of Englan d" If by this the learned judge means simply to assert that the decree of one court is powerless to declare void, by direct action upon it, the judgment or decree of another tribunal, he is in line with the numerous cases above cited; but if he means that the decree of one court cannot, by acting upon the parties before it, prevent them from enforcing or taking advantage of the judgment or decree of another When Belief Denie d But it seems that the federal courts will not grant relief where the injured party had an opportunity of apply- ing to the state court and negligently failed to avail himself of it ; 8 or where he did make such application and was refused relief 3 Ancillary Jurisdiction of Federal Court. A bill to set aside a judgment or decree of a federal court for fraud may be filed in the same court, without reference to the citizenship of the parties ; 4 and a jurisdiction, it is conceived that such a position is directly in contravention of the great weight of the authorities on the subje Ct 1 Arrowsmith v Gleason, 129 U S 86 See also Wickliffe v Eve, 17 How ( U S) 470- Test of Power of Foreign Tribuna L The test as to whether or not the foreign tribunal has power to in- terfere depends on the character of relief aske d It was clearly stated by Bradley, J, in Barrow v Hunton, 99 U S 80, and affirmed in a line of deci- sions in the Supreme Court of the Unit- ed States, cited in the preceding note: " The question presented, with regard to the jurisdiction of the Circuit Court is, whether the proceeding to procure nullity of the former judgment in such a case as the present is or is not in its nature a separate suit, or whether it is a supplementary proceeding so connected with the original suit as to form an incident to it, and substan- tially a continuation of it. If the proceeding is merely tantamount to the common-law practice of moving to set aside a judgment for irregular- ity, or to a writ of error, or to a bill of review or an appeal, it would belong to the latter category, and the United States court could not properly enter- tain jurisdiction of the cas e Other- wise, the Circuit Courts of the United States would become invested with power to control the proceedings in the state courts, or would have ap- pellate jurisdiction over them in all cases where the parties are citizens of different state S Such a result would be totally inadmissibl e On the other hand, if the proceedings are tanta- mount to a bill in equity to set aside a decree for fraud in the obtaining thereof, then they constitute an original and independent proceeding, and according to the doctrine laid down in Gaines v Fuentes, 92 U S 10, the case might be within the cog- nizance of the federal court S The distinction between the two classes of cases may be somewhat nice, but it may be affirmed to exiSt In the one class there would be a mere revision of errors and irregularities, or of the legality and correctness of the judg- ments and decrees of the state courts; and in the other class, the investiga- tion of a new case arising upon new facts, although having relation to the validity of an actual judgment or de- cree, or of the party's right to claim any benefit by reason thereof" 2 Nougue v Clapp, 101 U S 551; Graham v Boston, etc, RCo, 14 Fed Rep 753, affirmed in 118 U S 161; Foote v Glenn, 52 Fed Rep 529; Furnald -v Glenn, 56 Fed Rep 372, affirmed 'in 64 Fed Rep 49; Randall v Howard, 2 Blac K (U S) 585; Sanders v Soutter, 126 N Y 193; Dalhoff v Keenan, 66 Iowa 679 3 Sahlgaard v Kennedy, 13 Fed Rep 242, 4 McCrary (U S) 133 4 Krippendorff v Hyde, no U S 276; Pacific RCo -v Missouri Pac RCo, in U S 505, 12 Fed Rep 641; Pacific RCo -v Ketchum, 101 U S 289; Jones v Andrews, 10 Wal L ( U S-) 333; Foster v Mansfield, etc, RCo, 36 Fed Rep 640; Dunlap v Stet- son, 4 Mason (U S) 349; Osborn v Michigan Air Line RCo, 2 Fli P ( U S) 503 In Freeman v Howe, 24 How ( U S)450, it was said: " The principle is that a bill filed on the equity side of the court to restrain or regulate judg- ments or suits at law in the same court, and thereby prevent injustice or an inequitable advantage under mesne or final process, is not an origi- nal suit, but ancillary and dependent, supplementary merely to the original suit out of which it has arisen, and is maintained without reference to the citizenship or residence of the par- tie S" In Minnesota Co v St Paul Co, 2 bill to set aside the judgment or decree of a state court, if origi- nally filed in the state court, may be removed to a federal court, where the necessary difference of citizenship exist S 1 3 Allegations and Proof A AVERMENTS IN GENERA L A bill for relief against a judgment or decree must set out the former decree * or judgment, and state fully the circumstances relied on to obtain the relief desire d It must make out a meritorious case in every respe Ct 3 It must allege that the complainant has been actually damaged by the judgment or decree complained of; 4 that he has a valid and meritorious defense to the action, 5 or to Wal L (U S) 633, the court, speaking through Miller, J, said: "The ques- tion is not whether the proceeding is supplemental and ancillary, or is in- de endent and original, in the sense of the rules of equity pleading, but whether it is supplemental and ancil- lary, or is to be considered entirely new and original, in the sense which this court has sanctioned, with refer- ence to the line which divides the jurisdiction of the federal courts from that of the state court S No one, for instance, would hesitate to say that, according to the English chancery practice, a bill to enjoin a judgment at law, is an original bill in the chancery sense of the wor d Yet this court has decided many times, that when a bill is filed in the Circuit Court, to enjoin a judgment of that court, it is not to be considered as an original bill, but as a continuation of the proceeding at law; so much so, that the court will proceed in the injunction suit without actual service of subpoena on the de- fendant, and though he be a citizen of another state, if he were a party to the judgment at la W" But see Wick- liffe v Eve, 17 How (U S) 470 A suit to set aside a decree of fore- closure and sale thereunder is not a mere continuation of the foreclosure suit to such an extent as to authorize service of subpoena on persons with- out the territorial jurisdiction of the court.

Autor of the post: Undefined

5 A general allegation Post Date: Mon, 28 Jul 2008 3:59:25 +0000
Pacific RCo v Missouri Pac RCo, i McCrary (U S) 647 1 Marshall v Holmes, 141 U S 2 See I I 9 Requisites of Bill to Im- peach for Fraud, supr A 3 Alabama Broda v Green wald, 66 Ala 538; Headley v Bell, 84 Ala California Eldred v White, 102 Ca L 600; Riddle v Baker, 13Cal295- Georgia Sasser v Oliff, 91 Ga 84 Illinoi S Buntain v Blackburn, 27 111 406; Lavender v Boaz, 17 111 App 421 Nebraska Shufeldt v Gandy, 25 Neb 602 New Jerse Y Gifford v Thorn, 9 N J E Q 702 New York Totten's Estate, I Tuc K ( N Y) 115 South Carolina Vaughan v Hew- itt, 17 S Car 442 Tennessee Jones v Williamson, 5 Cold W (Tenn)37i; Maddox v Apper- son, 14 Lea (Tenn)6o4 Texa S Nichols v Dibrell, 61 Tex 539; Nevins v McKee, 61 Tex 412; Johnson v Templeton, 60 Tex 238; Overton v Blum, 50 Tex 417; Plum- mer v Power, 29 Tex 6; Goss v Mc- Claren, 17 Tex 107 Washingto N Wingard v Jameson, 2 Wash Ter 402 West VirginiaKnapp v Snyder, 15 W Va 434 Englan d Dunn v Cox, II Hare 61 4 McNair v Toler, 21 Min N 175; Dobbs v St Joseph F M In S Co, 72 Mo 189; First Baptist Church v Syms, 51 N J E Q 363, where the court said, " It must clearly ap- pear that the collusive acts have done injury to the complainant. It is not enough that they create doubt as to validity * * * and present a contest- able cas e" 5 White v Crow, no U S 183; Foster v Mansfield, etc, RCo, 36 Fed Rep 640; Kimberly v Arms, 40 Fed Rep 548, 558 ; State v Hill, 50 Ark 458 ; Rotan v Springer, 52 Ark 80 ; Harman v Moore, 112 Ind 221 ; Poor v Tuston, 53 Ka N 86 ; Muse v Wafer, 29 Ka N 279; Newman v Taylor, 69 Mis S 670; Stewart v Brooks, 62 Mis S 492; Janes v Howell, 37 Neb 320; Petalka v such part as he wishes to litigate ; l the facts constituting such defense ; 2 a competent excuse for failure to make such defense in the original action ; 3 and, probably, that complainant has no remedy at la W 4 b AVERMENT OF FRAU d Where fraud is the basis of the relief sought, the bill must state all the circumstances of the fraud, and the nature and extent of its operation in obtaining the im- proper decree or judgment. 5 A general allegation of fraud is not it must be specific, pointed, and relevant.

Autor of the post: Undefined

" Bill for Hew Tria L Post Date: Mon, 28 Jul 2008 3:40:47 +0000
6 It must Fitle, 33 Neb 756; Gulf, etc, RCo v King, 80 Tex 681; Huebschman v Baker, 7 Wi S 542 Where Defendant not Serve d But where judgment has been obtained by reason of an unauthorized appearance of attorney, it may be enjoined with- out showing a meritorious defens e Mills v Scott, 43 Fed Rep 452 But see Pilger v Torrence, 42 Neb 903; Budd v Gamble, 13 Fla 265 1 Hair v Lowe, 19 Ala 224 2 Hollinger v Reeme (Ind, 1894), 36 N E Rep 1114; Wilson Sewing Mac H Co v Curry, 126 Ind 161; Chi- cago, etc, RCo -v Manning, 23 Neb 552; Winters v Means, 25 Neb 241; Osborn v Gehr, 29 Neb 661 Ability to Prove Defense in the action at law must, it is said, be also averre d Beadle v Graham, 66 Ala 102 3 Alabama Hair v Lowe, 19 Ala 224; Roebling Sons Co v Stevens Electric Co, 93 Ala 39 Illinoi S Elston v Blanchard, 3 111 420 Indiana Hollinger TJ Reeme (Ind, 1894), 36 N E Rep 1114; Ratliff v Stretch, 130 Ind 285; Nicholson v Nicholson, 113 Ind 135 Minnesota Clark v Lee (Min N, 1894), 59 N W Rep 970 Mississipp I Roots v Cohen (Mis S, 1893), 12 So Rep 593 Missour I Link v Link, 48 Mo App 345; Sanderson v Voelcker, 51 Mo App 328 New Jerse Y Vaughn v Johnson, 9 N J E Q 173 New York Metropolitan E L RCo v Johnston (Supreme Ct), 32 N Y Supp 49; New York v Brady, 115 N Y 599- Texa S Gulf, etc, RCo v King, 80 Tex 681; Myers v Pickett, 81 Tex United State S Root v Woolworth, x So U S 401; Pacific RCo v Mis- souri Pac RCo, 12 Fed Rep 641, in U S 505 Englan d Bateman v Willoe, i Sc H Lef 201 The rule is thus stated in Cairo, etc, RCo v Titus, 27 N J E Q 102: " It will not suffice to show that in- justice has been done by the judg- ment against which relief is sought, but it must appear that this result was not caused by any inattention or neg- ligence on the part of the person ag- grieved, and he must show a clear case of diligence, to entitle himself to an injunctio N" 4 Ratliff v Stretch, 130 Ind 282; Sanger v Fincher, 27 111 346; Riddle v Baker, 13Cal295 See Burem v Foster, 6 Heis K (Tenn) 333; Krop- holler v St Paul, etc, RCo, 2 Fed Rep 302 5 U S v Atherton, 102 U 8372; Gates v Steel, 58 Con N 316; Lyme v Allen, 51 N H 242; Gordon v Ross, 63 Ala 363; McDowell v Morrell, 5 Lea (Tenn) 278; McCook v Bernd, 79 Ga 391; Brick v Burr, 47 N J E Q 189; Lininger v Glenn, 33 Neb 187 See I I 9 Requisites of Bill to Impeach for Fraud, supr A 6 Shedden v Patrick, i Mac Q H L Ca S 535; Patch v Ward, L R3 C H 203, 4 Giff 96; Jones v Brittan, i Woods (U S)667; Sahlgaard v Ken- nedy, 13 Fed Rep 242, 4 McCrary ( U S) 133; Willingham v Harrell, 36 Ala 583; Elston v Blanchard, 3 111 420; Smith v Nelson, 62 N Y 288; Maddox v Apperson, 14 Lea (Tenn) 606; Harn -v Phelps, 65 Tex 592 See article FRAU d "Actual, positive fraud must be show N Mere constructive fraud is not sufficient." Lyme v Allen, 51 N H 242 So, upon a bill for a new trial, the allegation that complainants are "of opinion " that the note upon which the judgment was rendered was altered also be shown that the decree or judgment in question had no other foundation than the fraud complained of, and that if there had been no fraud, a different result would, in all probability, have been reache d 1 C PROOF OF FRAU d These facts should not only be stated in the bill, 2 but they must be proved to the satisfaction of the court before the relief asked will be grante d 3 The proof of fraud after it was given, is too vague and indefinite, even if confessed, to au- thorize a decree for plaintiff Carter v Lyman, 33 Mis S 171 Compare Kent v Ricards, 3 Md C H 392 But it is said that a general allega- tion of fraud is sufficient, if so cer- tainly and distinctly stated as to make the subject-matter of it cleaRDe Louis v Meek, 2 Greene (Iowa) 55; Davis v Teleston, 6 How (U S) 120 See also Batts v Winstead, 77 N Car 238; Link v Link, 48 Mo App 345; Whittlesey v Delaney, 73 N Y 571 1 Guild v Phillips, 44 Fed Rep 461; Vetterlein v Barker, 45 Fed Rep 741; Kimberly v Arms, 40 Fed Rep 548; Boyden v Reed, 55 111 458; Colson -v Leitch, no 111 504; Hollinger v Reeme (Ind, 1894), 36 N e Rep 1114; Gill v Carter, 6 J J Marsh (Ky) 484; Roots v Cohen (Mis S, 1893), 12 So Rep 593; Mad- dox v Apperson, 14 Lea (Tenn) 606; National Fertilizer Co v Hinson (Ala, 1894), 15 So Rep 844 The rule and the principles on which it is based are again well stated in Dringer v Receiver, 42 N J E Q 573, affirmed in 43 N J E Q 701, as follows: " I take it to be entirely clear that, un- less the bill shows plainly and dis- tinctly that but for the frauds alleged there would have been no decree in other words, that the frauds alleged produced the decree the complain- ant has no cas e * * * A court of equity may unquestionably annul a judgment or decree which has been obtained by fraud, but, in order to justify such an exercise of power, it must be made clearly to appear that the judgment or decree has no other foundation than fraud; in other words, it must be made to appear that if there had been no fraud, there would have been no judgment or decre e An attempt to exercise a wider or more liberal jurisdiction, in cases of this class, would, it will be perceived, nec- essarily enlarge the jurisdiction of courts of equity, so as to make them, practically, courts for the review of the judicial acts of other tribunals, and not tribunals with just sufficient power to redress frauds by undoing what fraud has don e * * * A simple statement of the ground upon which jurisdiction in such cases rests shows that, unless the decree assailed is shown to be the sole and direct product of the fraud charged, this court has no authority whatever either to annul or change it, for its jurisdiction is unalterably limited to the simply undoing of what fraud has don e It is, therefore, clear that if this decree has no other foun- dation than the fraud here charged, this court, even if convinced that the decree is unjust according to the real right of the case, cannot disturb it." Bill for Hew Tria L So in the case of a bill for a new trial, where it appears that the evidence on the new trial would be in direct conflict, and might probably result in a second judgment for the defendant in the present pro- ceeding, the relief will be denie d Roots v Cohen (Mis S, 1893), 12 So Rep 593 2 Affidavit to Bil L The bill itself should be verified by affidavit.

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463; Flower v Lloyd, 6 Post Date: Mon, 28 Jul 2008 3:26:41 +0000
Brick v Burr, 47 N J E Q 189; Hollinger v Reeme (Ind, 1894), 36 N E Rep 1114 3 Sahlgaard v Kennedy, 13 Fed Rep 242, 4 McCrary (U S) 133; Sheetz v Kirtley, 62 Mo 417; Crafts v Hall, 4111 131 The Burden of Proof rests, of course, on the party attacking the judgment or decree as fraudulent. Daly v Og- den, 28 111 App 319; Stout v Oliver, 40 111 245 ; Vanpelt v Hutchinson, 114 111 435; Eichoff v Eichoff (Ca L, 1895), 40 Pac Rep 24 Proof muit be Satisfactor Y In Hew- itt v Lucas, 42 111 296, the court says: "The rule is, that a court of chancery will use its power to set aside a verdict and judgment at law only where it is made clear that a wrong has been don e The evidence must v WHAT CONSTITUTES FSAUD 1 In Genera L The question al- ways arises as to what is such fraud as will justify a court of equity in giving relief against a decree or judgment obtained through this mean S This must, of course, be determined, to a great ex- tent, by the particular circumstances of each cas e* One rule, however, is found to be laid down by all the authorities, namely, that the fraud relied on must not be a fraud in an antecedent transaction, or in the claim which has ripened into a judgment, or in the instrument on which the judgment is base d 3 The fraud be very satisfactor Y" So it is not error to deny an injunction where the only evidence in support of the allega- tions of the petition is an affidavit that " the lacts contained in the fore- going petition, so far as concerns my own act or deed, are true, of my own knowledge; and what relates to the acts or deeds of any other person, I be- lieve to be tru e" Sasser v Olliff, 91 Ga 84 1 Oldham v Cooper, 5 De L C H 151; Gray v Barton, 62 Mich 186; Weidersum v Naumann, 62 How Pr ( N Y Supreme Ct) 369; Smith z Nelson, 62 N Y 286 ; Morton v Weaver, 99 Pa St 47; Boyden v Reed, 55 111 458, where the court said: " If this bill be regarded simply as a bill in the nature of a bill of review, to impeach the former decree solely on the ground of fraud in its procurement, then the evidence to support that allegation must be clear and satisfactory, and unclouded by doubt or uncertaint Y A decree once enrolled will not be set aside but for the strongest and most satisfactory reason S" But see Adair v Cummin, 48 Mich 375 2 Randall v Payne, I TennC H 143 In Kimberly v Arms, 40 Fed Rep 548, Jackson, CJ, said: "The courts have not, and cannot, accurately de- fine the acts done, or facts concealed, which will constitute such fraud as will vitiate or invalidate such judg- ments and decree S It may, however, be stated generally that where a suc- cessful party has by meditated and intentional contrivance kept the op- posing side and the court in ignorance of material and controlling facts, whereby he has secured an unjust advantage, or a decree adverse to the real merits of the controversy, a court of equity will entertain a bill to im- peach and annul such decre e" The following cases may be con- sulted as to what circumstances will be sufficient to make out a case of fraud : Manaton v Molesworth, i Eden 18; Kennedy v Daly, I Sc H Lef 355; Gordon v Gordon, 3 Swanet. 463; Flower v Lloyd, 6 C H Div 297, 10 C H Div 327; Henderson v Cook, 4 Drew 306, 6 W R831; U S v Throckmorton, 98 U S 61; Walker v Robbins, 14 How (U S) 584; Vetter- lein v Barker, 45 Fed Rep 741; Guild v Phillips, 44 Fed Rep 461 ; Sahlgard v Kennedy, 2 Fed Rep 295; National Fertilizer Co v Hinson (Ala, 1894), 15 So Rep 844; Swift v Yanaway (111), 153 111 197; Chicago Bld g So C v Haas, in 111 176; Durham v Field, 30 111 App 121 ; Griggs v Gear, 8 111 ii ; Nealis v Dicks, 72 Ind 374; Dady v Brown, 76 Iowa 528; Gill v Carter, 6 J J Marsh (Ky) 484; Bell v Rucker, 4B Mo N (Ky)453; Talbott v Todd, 5 Dana (Ky) 190; Adair v Cummin, 48 Mich 375; Person v Nev- itt, 32 Mis S 180; Haynes v Powell, i Lea (Tenn) 347; Keran v Trice, 75 Va 690 SZellerbach v Allenberg,67Cal296; State v Holmes, 69 Ind 577; Smedes v Ilsley, 68 Mis S 590; Murphy v De Franc e 101 Mo 151; Payne v O'Shea, 84 Mo 129; Smith v Sims, 77 Mo 270; Link v Link, 48 Mo App 345; Schu- feldt v Gandy, 34 Neb 32; Edmanson v Best, 57 Fed Rep 531; New York v Brady, 115 N Y 599; Gifford v Thorn, 9 N J E Q 702; Stratton v Allen, 16 N J E Q 229; Mechanics' Nat Bank v Burnet Mfg Co, 33 N J E Q 486; also Vanmeter v Jones, 3 N J E Q 520; Irvine v Leyh, 102 Mo 200, where the court said: "The acts for which a court of equity will, on account of fraud, set aside or annul a judgment or decree, between the same parties, rendered by a court of competent must consist in something extrinsic and collateral to the matter actually tried in the former suit, or so in issue that it might have been trie d 1 It must be a fraud in the act of obtaining the judg- ment, 2 or, as it is frequently expressed in the cases, a fraud in the very concoction of the judgment itself 3 2 Perjury Forged Instrument Perjur Y There is some conflict between the authorities as to whether a judgment or decree ob- tained by means of perjury, or subornation of perjury, will be vacated on that ground in equity ; but the great majority of decisions is decidedly in favor of the doctrine that in such cases equity will afford no relief 4 jurisdiction, have relation to frauds, extrinsic or collateral to the mat- ter tried by the first court, and not to a fraud in the matter on which the de- cree was founde d * * * The principle thus so strongly stated in the cases cited proceeds upon the ground that the party had an opportunity to ap- pear and interpose the defense in the suit in which the judgment complained of was rendere d" 1 U S z'.

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It is said Post Date: Mon, 28 Jul 2008 3:16:06 +0000
Throckmorton, 98 U S 61 ; Ward v Quinlivin, 57 Mo 425; Eaton v Hasty, 6 Neb 419; Lyme v Allen, 51 N H 242; Davis v Headley, 22 N J E Q 115; New York v Brady, 115 N Y 599; Black v Smith, 13 W Va 794; Bateman v Willoe, i Sc H Lef 201 This doctrine is fully discussed and a seemingly different conclusion reached in Maddox v Apperson, 14 Lea (Tenn) 596 The case criticises U S v Throckmorton, 98 U S 61 2 Zellerbach v Allenberg, 67Cal296; State v Holmes, 69 Ind 577 3 Link v Link, 48 Mo App 345; Murphy v De France, 101 Mo 157; Stratton v Allen, 16 N J E Q 229; Mechanics' Nat Bank v Burnet Mfg Co, 33 N J E Q 486; New York v Brady, 115 N Y 599; Ross v Wood, 70 N Y 8, 8 Hun ( N Y) 185, 51 How Pr ( N Y) 196; Michigan v Phoenix Bank, 33 N Y 9 ; Schottenkirk v Wheeler, 3 John S C H ( N Y) 275; De Riemer v De Cantillon, 4 John S C H ( N Y) 85; French v Shotwell, 6 John S C H T N Y) 235 4 Vance v Burbank, 101 U S 519; U S v Throckmorton, 98 U S 61; Kimberly v Arms, 40 Fed Rep 548; Daniels v Benedict, 50 Fed Rep 347; U S v Flint, 4 Saw Y (U S) 42; Pico v Cohn, 91Cal129; Guthrie z/ Doud, 33 111 App 68; Brown v Luehrs, 95 111 195; Woodside v Morgan, 92 111 273; Riley v Murray, 8 Ind 354; Cot- tie v Cole, 20 Iowa 481; Metcalf v Gilmore, 59 N H4I7; Folsom v Fol- som, 55 N H 78; Cleveland Iron Mi N Co v Husby, 72 Mich 6t; Gray v Barton, 62 Mich 186; Smith v Lowry, I John S C H ( N Y) 320; Woodruff v Johnston (Supreme Ct), 19 N Y Supp 861; Holtz v Schmidt, 44 N Y SupeRCt 327; New York Cent RCo v Harrold, 65 How Pr ( N Y Supreme Ct) 89; Dringer v Receiver, 42 N J E Q 573; Frieze v Hummel (Oregon, 1894), 37 Pac Rep 458, where the court said: "A judg- ment or decree procured by perjury is doubtless a fraud, and such as would induce equity to grant relief, were it not for the fact that its existence can rarely or never be ascertained other- wise than by trying anew an issue tried in the former proceedin g Frauds for which a court of equity will set aside a judgment or decree must consist of extrinsic collateral acts not involved in the consideration of the merit S The credibility of testimony given on the trial of a cause bearing upon the issue is intrinsic, and has been con- sidered in reaching the conclusion sought to be^impeached; and the case is not the less tried on its merits, and the judgment is none the less conclu- sive by reason of the false testimony produce d" Again, in Ross v Wood, 8 Hun ( N Y) 185, affirmed in 70 N Y 8, Davis, PJ, said: " If this action can be main- tained to retry the issue upon such allegations, there can be, of course, no end to litigatio N Nothing will hinder the defendants in this action, if the plaintiff shall chance to succeed, from filing their complaint alleging the perjury of the plaintiff and his witnesses as the reason of his success, and from obtaining a retrial of the Forged Instrument. The case of a judgment or decree obtained by means of a forged instrument is similar to one obtained through perjury, and is generally insufficient to entitle complainant to equitable relief 1 3 Intent. It is said that the fraud must be intentional, show- ing a mala mens ; 2 at least, where the complainant has not been actually injured ; 3 but on the other hand, a mere fraudulent in- tent, without more, will not be sufficient.

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