164 Iowa 750 | Iowa | 1914
On the 18th day of July, 1911, the plaintiff, G. L. Aschan, filed his petition in the district court of Dallas county, in which he claimed that he was entitled to a one-sixth interest in certain land belonging to the estate o.f Carl Aschan, then deceased, and asking that his interest therein be established, and that such interest be quieted in him. His petition was in three counts. In the first count he claimed that he is a child of said Carl Aschan. . In the second count he alleged that
The defendants are the children and heirs at law of Carl Asehan, except the defendant Johanna Asehan, who is their mother and guardian. They each deny plaintiff’s claims.
Upon the issue thus tendered, the court found for the defendants, and the plaintiff has not appealed. The defendants, however, filed a counterclaim or cross-petition against the plaintiff, in which they ask judgment against him for $862.05, and as a ground for such claim allege that there had been a former sale of certain land belonging to the estate of Carl Asehan, and that plaintiff wrongfully obtained an order for a distribution of the money received from the sale on the ground that he was a son of Carl Asehan, and that under said order the money was wrongfully paid to the plaintiff, and that the heirs of Carl Asehan, defendants herein, are now entitled to receive it back.
It appears from the record that the plaintiff is a Swede; that Carl Asehan was also a Swede; that they both resided in Sweden; that the father of the plaintiff, having custody and control of the plaintiff, turned the plaintiff over to Carl Asehan and his former wife, who were then about to remove to America; that the Aschans were childless; that they took the child and brought him to America; that he lived with them as a member of their family until after the death of Mrs. Asehan, the former wife, and continued to so live up to the time he became of age; that they became greatly attached to
On the 11th day of May, 1897, the plaintiff in this case was appointed administrator of the estate of Carl Aschan, and duly qualified and gave bond. On the 27th day of May, 1898, he filed his final report, as such administrator, and was duly discharged.
Johanna Aschan was appointed guardian of the minor children of Carl Aschan and procured an order from the court for the sale of certain real estate of the said Carl Aschan, which resulted in her receiving from said sale the sum of $7,758.50. That amount she held in her possession as the proceeds of such sale. Thereafter, and on the 15th day of March, 1909, the plaintiff herein filed the following application in the matter of the guardianship of the heirs of Carl Aschan, deceased, which was duly verified:
Comes now your petitioner, G. L. Aschan, and states: That the heirs of Carl Aschan, deceased, are as follows: Johanna Aschan, wife of deceased, Ida Matilda Aschan, Esther Corinne Aschan, Carl William Aschan, Vada Wilhelmina
Thereupon the court made the following order:
The court, having read the foregoing application and being fully advised in the premises, hereby authorizes the said Johanna Aschan to transfer and pay over to G. L. Aschan, in the manner and terms set out in the foregoing application, the sum of $862.05 as his share of the proceeds of said sale.
Thereafter the judge of said court, on the 1st day of May, 1909, on his own motion and without notice to the plaintiff, and, as we understand it, in vacation, because, as he says in his testimony, he felt that he had been misled at the time the 'first order was made, and that there had been in fact a concealment from the court in reference to G. L. Aschan’s relationship to Carl Aschan, entering the following order:
Now on this 1st day of May, 1909, the matters in connection with said estate being presented to the court for consid
It appears that all the information that Judge Nichols obtained upon which he based this last order was from conversations had with the guardian of these minor defendants and the attorneys interested in the controversy. It also appears that the guardian had complied with the first order and had delivered to the plaintiff the notes and money, as therein ordered, and this before the second order was made. It also appears that the guardian o-f these minors had knowledge of the application made by the plaintiff for distribution at the time it'was made, and the application was verified by her attorney, although at the same time, he acted for the plaintiff in this matter.
We would gather from the whole record that the plaintiff honestly believed that he was entitled to share in the estate of Carl Aschan at the time he made the application, and we would infer, from the fact that the guardian did not protest against it, that she also believed or, if she did not believe, consented to his sharing at that time in the estate of Carl Aschan, as heir or otherwise. There was no actual or intentional fraud perpetrated- on the court. It is apparent that
The defendant’s counterclaim against the plaintiff is based upon the theory that the first order of distribution, in which plaintiff received the $862.05, was wrongfully entered, and that fraud was practiced upon the court in entering it, and that therefore the second order, made by the judge on his own motion, supersedes the first order, and' defendants are now entitled to recover that amount from the plaintiff.
The court from which this appeal is taken made the following finding of fact touching this matter:
The guardian reported the sale of the property to the court, and the court approved the sale without any order made as to what should be done with the funds, or as to what interest, if any, defendants had therein; that the petition of the plaintiff for distribution, in which he asked to be recognized as one of the heirs, was presented by the attorney of record who appeared for the guardian in the original case in which the sale of the land was made; that on the same day Johanna Aschan, as guardian of these minors, filed her application with the court in the same case, asking that she be allowed the sum of. $200 for the support of the minors; that both these applications were made at the same time, both applications were presented by the same attorney, and the orders entered on the same date; that, on the 1st day of May following, the judge, who made the order, filed a revocation of the same, but, before this revocation was made, the order, as it appears, had been complied with by the guardian, and the money paid under it.
This controversy turns upon the force and effect to be given to the first order made by the court directing the guardian to pay to the plaintiff the $862.05 which the guardian now seeks to recover back.
The fraud which will authorize the setting aside of a decree or judgment must be such as prevents the unsuccessful party from having a trial. As said in United States v. Throckmorton, 98 U. S. 65 (25 L. Ed. 93) :
Where the unsuccessful party has been prevented from exhibiting fully his case by fraud or deception practiced on him by his opponent, as by keeping him away from court, a false promise of a compromise, or where the defendant never had knowledge of the suit, being kept in ignorance by the acts of the plaintiff, or where an attorney fraudulently or without authority assumes to represent a party and connives at his defeat, or where the attorney regularly employed corruptly sells out his client’s interest to the other side, these and similar cases, which show that there has never been a real contest in the trial or hearing of the case, are reasons for which a new suit may be sustained to set aside and annul the former judgment or decree and open the case for a new and fair hearing (citing many eases). In all- these eases, and many others which have been examined, relief has been granted on the ground that, by some fraud practiced directly upon the party seeking relief against the judgment or decree, that party has been prevented from presenting all of his case to the court.
In Pico v. Cohn, 91 Cal. 129 (25 Pac. 970, 13 L. R. A. 336, 25 Am. St. Rep. 159), the court said:
That a former judgment or decree may be set aside and annulled for some fraud there can be no question; but it must be a fraud extrinsic and collateral to the questions examined and determined in the action. And we think it is settled beyond controversy that a decree will not be vacated merely because it was obtained by forged documents or perjured testimony. The reason of the rule is that there must be an end of litigation; and when persons have once submitted a matter, or have had the opportunity of submitting it, for investigation and determination, ... it must be regarded as final and conclusive, unless it can be shown that the jurisdiction of the court has been imposed upon, or. that
In Graves v. Graves, 132 Iowa, 205, it is said:
While there are suggestions in argument in some particular cases which seem to indicate that false swearing may be a ground for vacating a judgment (Heathcote v. Haskins, 74 Iowa, 566; Brown v. Byam, 59 Iowa, 52), yet in neither case was the question squarely decided. In all other cases, where new trials were granted, there was some active fraud, omission, or concealment, some extrinsic or collateral acts, not involving the merits of the case. In Tucker v. Stewart, 121 Iowa, 714, we said that the rule announced by the Supreme Court of the United States, in United States v. Throckmorton, is that uniformly followed in this state. This settles the matter for this jurisdiction, and we need only restate the doctrine, which is that false swearing or perjury alone is not ground for setting aside or vacating a judgment. But if accompanied by any fraud, extrinsic or collateral, to the matter involved in the original case, sufficient to justify the conclusion that but for such fraud the result would have been different, a new trial may be granted.
See, also, Kwentsky v. Sirovy, 142 Iowa, 385, in which the matter now under consideration was fully discussed.
In this case, however, there was no fraud practiced by the plaintiff. He believed, and from the record we are justified in saying he had reason to believe, that he was entitled to what he asked for. Up to that time the guardian, who jg now complaining, was of the opinion, and acted upon the theory, that he was entitled to participate in the estate. She cannot urge now her own negligence or carelessness to avoid the effect of the order so made by the court.
Since the appeal in this case was taken, the defendants have filed a motion in the probate court to set aside the first, order made by Judge Nichols, and for this reason the plaintiff has moved to dismiss the appeal in this case. "We think there is no merit in this motion, and the same is overruled.
We find no reason, in fact or in law, for disturbing the decree of the court herein entered, and the same is therefore— Affirmed.