Allen v. Currey, No. 2,352

No. 2,352 | Cal. | Jul 1, 1871

By the Court, Crockett, J.:

In the action of Currey v. Allen the precise point in issue was whether or not Currey had authorized Allen to bid in the land in contest, at the execution sale, in Allen’s name and for his own benefit; or whether, in bidding it in, Allen .was acting only as the agent and attorney of Currey. This was the only point in contest; and each of the parties testified in his own behalf, and there was no other evidence in the cause. The judgment was in favor of Currey; and after a motion for a new trial, which was denied, Allen appealed to this Court. On the hearing of the appeal the judgment was affirmed (34 Cal. 254" court="Cal." date_filed="1867-07-01" href="https://app.midpage.ai/document/currey-v-allen-5436536?utm_source=webapp" opinion_id="5436536">34 Cal. 254), and thereupon Allen conveyed to Currey the title he had acquired at the execution sale, as he was required to do b.y the judgment.

The present action is in the nature of a bill of review, or for a new trial, on the ground of newly discovered evidence, to the effect that Currey, many months prior to the former action, had admitted, in a conversation with one Erneric, that he had authorized Allen to bid in the- land in his own name and for his own benefit, and that he (Currey) had no interest whatever in the land. The District Court sustained a demurrer to the complaint, and entered a final judgment for the defendant; from which judgment the plaintiff has appealed.

If the complaint be treated as a bill of review, the application for relief came too late. Dearly three years had elapsed after final judgment of the District Court in the former action before the complaint in this case was filed; and it is well settled that Courts of equity will not entertain a bill of review after the time within which an appeal or writ of error may be prosecuted. The repose of society demands that when a controversy has been ended by the final judgment of a Court, it shall not be reopened except within a reasonable time; and in respect to bills of review, Courts of equity have adopted, as a reasonable period within which they may be prosecuted; the time allowed by law for the prosecution of an appeal or writ of error. (Story Eq. PI. See. 410; Smith v. Clay, Ambler R. 645; Cooper Eq. Pl. 91; Thomas v. Harrie, 10 Wheaton R. 146.)

Tested by this rule, and treating the complaint as a bill of review, the Court below properly refused to entertain it, because it came too late. But the plaintiff claims that the judgment in the former action was obtained by means of a fraudulent suppression, by the present defendant, of the facts of the transaction, and ought, therefore, to be set aside on the ground of fraud. The fraud imputed to the defendant is his alleged failure to disclose at the trial the fact that he had authorized the plaintiff to bid in the land in his own name and for his own benefit; but it is said that instead of admitting this fact, as he ought to have done, the defendant denied it, when testifying in his own behalf; and it is proposed to prove the truth of this allegation by the testimony of Emerie, in addition to that of the plaintiff himself. It is not pretended that any new fact has occurred, since the former trial, to vary the rights of the parties, nor that the plaintiff was then ignorant of the facts of the transaction. All that he has since discovered is some additional testimony tending to sustain his theory of the facts, and to rebut that of the defendant. But it is quite evident that if a judgment could be set aside as fraudulent on such a showing as this, litigation would be interminable. If, on another trial, the plaintiff should still fail to maintain his case, he might, on the same theory, thereafter institute a new action on the discovery of additional evidence, and so on ad infinitum. If the losing party were permitted to assail the judgment as fraudulent, on the ground that his adversary knew the facts to be as he claimed them to be at the trial and failed to disclose them, and that he has since discovered some additional evidence tending to prove them, a judgment, instead of being a “ final determination of the rights of the parties,” as defined by the statute, would be little else, in its legal effect, than an order to show cause why it should not be set aside.

Judgment affirmed.