46 Pa. Super. 531 | Pa. Super. Ct. | 1911
Opinion by
Benjamin N. Nolt, the appellant, having obtained judgment against Henry Binkley, Sr., the father of the appellee issued a fi. fa. by virtue of which certain personal property was levied upon. Clara Y. Binkely, the wife of the defendant in the execution, claimed the property. In due course a sheriff’s interpleader issue was framed in which she was made plaintiff and Benjamin N. Nolt was made defendant, and upon her giving bond with two sureties, which was approved by the court, the chattels were delivered to her. The plaintiff’s statement and the defendant’s plea thereto were filed on June 17, 1905, and the cause was on the trial list and continued two or thiee times. In November, 1907, the death of Clara Y. Binkley was suggested, and in due course Harry Binkley, who was her son and the administrator of her estate, was brought in by scire facias and made plaintiff in the suit. After two or three further continuances, the case was called for trial on November 24,1908, and a verdict was rendered in favor of the defendant for $1,024.45, being the value of the property with interest. On December 12, 1908, pursuant to rule previously entered, the costs were taxed, the counsel for the parties being present, and ten days afterwards the jury fee was paid and judgment was entered on the verdict. Nearly ten months afterwards,
It was alleged in the petition, and evidence was furnished by the depositions tending to show, that the property in question belonged to Clara Y. Binkley, and that there was evidence obtainable then as well as at the preceding trial to establish that fact. This, of course, would not be ground for opening the judgment; but it is alleged that the verdict and judgment were obtained by fraud, and therefore, it is argued, the court had power, even after the term, not only to open the judgment, which was prayed for, but also to strike off the verdict, which was not prayed for. In his opinion making absolute the rule the learned judge summarizes the testimony of the plaintiff in support of the allegation of fraud, and states the corroborating circumstances as follows: “Harry Binkley, Jr., testified that he administered on the estate of his mother at the request of defendant, who promised him a reduction in the price of certain real estate or a cash consideration, if he preferred it, if he would do so, and permit him to obtain a verdict in the interpleader case, with which he could make the sureties on such bond of Clara Y. Binkley pay the value of the property in dispute; that the defendant with a friend whom he secured for that purpose became his sureties on his administration bond; that he employed the defendant’s attorney as his attorney at the defendant’s suggestion and request; that he employed an attorney, whom he did not know, to appear for him in this case, at the suggestion of the defendant; that he met this attorney in the presence of the defendant, at the office of the defendant’s attorney, who sent for him to come there;
Here the plaintiff is seeking the aid of the equitable powers of the court to obtain a new trial, upon the ground that the verdict against him was obtained through his fraudulent collusion with the other party, and this although he did not make his application until long after the expiration of the term at which judgment was entered on the verdict. While the rule that fraud vitiates everything into which it enters applies to verdicts and judgments, and the equitable powers of the courts on the subject may be administered summarily upon rule, and while the expiration of the term does not necessarily preclude the court from the exercise of these equitable powers (Fisher v. Hestonville, etc., Railway Co., 185 Pa. 602), yet, according to the principles above stated, it will not be exercised, ordinarily, upon the application of a party who was a participant in the fraud, and equally guilty with the other party to the suit. None of the cases cited in the opinion of the learned judge of the common pleas or in the brief of appellee’s counsel presents an exception to this general rule. Nor can we see that the mere fact that the party making the application is an administrator makes the case an exception. There would be force in the argument that it ought to do so, if it were clear that the sureties on the interpleader bond, or the creditors and next of kin of Clara Y. Binkley were so far concluded by the judgment that they could not defend and secure their rights by show
The order is reversed, the rule to show cause is discharged, the verdict and judgment are reinstated, and the appellee is directed to pay the costs.