92 Cal. 344 | Cal. | 1891
Lead Opinion
The action is one in equity, and is, in effect, to set aside a former judgment between the parties, wherein the alleged title of the defendant herein to the land described in the complaint was quieted as against all claims of the present plaintiff. The findings of the court below show that this judgment was obtained by default, and upon a service of the summons therein by publication, and that the present plaintiff had no knowledge of the pendency of that action, or of the rendition of said judgment, until more than one year after its date. The court also finds, and the evidence is sufficient to sustain these findings, that in point of fact the plaintiff here was the owner of the property involved in that action, and that not only was the defendant here without title, but that he knew that the allegations of the complaint filed by him for the purpose of obtaining the judgment referred to were wholly false. The ques
It is claimed, however, that the fraud here complained of is concluded by the judgment itself; that whether the defendant had a good title to the land in controversy was the very matter involved in the former action, and the judgment therein is conclusive upon the plaintiff; and in support of that, the case of United States v. Throckmorton, 98 U. S. 61, and other similar cases, are cited. But the rule there announced is only applicable where the former judgment was the result of a trial between the parties, or where the one against whom the judgment was rendered had actual notice of the pendency of the action, and neglected to submit his proofs. The case just mentioned was one in which a retrial of an action which had been once fully tried was asked, and can have no kind of bearing here, where the plaintiff never had his day in court, or any opportunity to make his defense to the false and fraudulent claim upon which the judgment against him was based. Hot having any knowledge of the pendency of that action, it was an absolute impossibility for him to protect his rights therein, and his failure to defend was not a negligent omission
Appeal from judgment dismissed; order denying motion for new trial affirmed.
Sharpstein, J., and Harrison, J., concurred.
Concurrence Opinion
I concur. It appears that Dunlap was, without any fault of his own, deprived of the opportunity of interposing a perfect defense to the action of Steere v. Dunlap, and it is alleged in the complaint herein, and found by the court, not only that the allegations of the complaint'in the former action were untrue, but that Steere at the time knew they were false. The evidence is sufficient to sustain this finding, at least so far as the complaint in the former action counted upon a title by prescription; but there is nothing to show that Steere in fact knew that his tax title
Dissenting Opinion
I dissent, and concur in the opinion of Commissioner Vanclief, prepared in Department, a copy of which is hereto attached; and I desire to say further, that, in my opinion, there is no sufficient evidence to support the latter part of the following finding of the court: “And the said John Steere was not then the owner of the said property, nor any part thereof, and had no right, title, or interest of any sort therein, all of which he well knew.” In Steere’s complaint in the original action, he first averred ownership and possession of the land, and afterwards also averred adverse possession in himself and grantors for five years; and it fully appears that he relied upon paper title founded on a certain tax deed, as well as upon adverse possession, —if
The following is the opinion of Vanclief, 0., in Department: — <
“Action to quiet plaintiff’s title to two lots in the town of Santa Monica, in the county of Los Angeles, and for this purpose to annul a former judgment of the same court between the same parties as to the same lots, and to enjoin its execution. Judgment passed for the plaintiff, and the defendant appeals from the judgment, and from an order denying his motion for a new trial. The judgment was rendered September 24, 1888, and the appeal from it was taken July 18, 1890, and should therefore be dismissed; but the appeal from the order was taken within sixty days from the time the order was made.
“ ‘ John Steere, being duly sworn, says that he is the plaintiff in the above-entitled action; that the complaint in said action was filed with the clerk of said court on the 25th day of June, 1884, and summons thereupon issued; that said action is brought to obtain a decree of said court quieting the plaintiff’s title to that certain tract or parcel of land lying and being situate in the county of Los Angeles, state of California, and particularly described as lots X and W, in block 193, in the town of Santa Monica, as designated on the map of said town; that in said decree it be declared and adjudged that plaintiff is the owner of said premises, and that the defendants, or either of them, have no estate or interest whatever in or to said land and premises; and affiant further says that said plaintiff is the owner in fee of said premises, and said plaintiff and his grantors have been, for more than five years continuously, in the open, notorious, and adverse possession of said premises, claiming the same adversely to all the world; that the defendants claim some interest in said premises adverse to plaintiff, but the said claims of defendants are without any right whatever; and that the said defendants, or either of them, have no right, title, or interest in said land or premises, or any part thereof. Deference is had to the verified complaint of plaintiff on file herein, in
“ The order of publication was in the usual form, requiring the summons to be published twu months in a proper newspaper, and it was published as required by the order. More than one year after the rendition of the former judgment, the defendant (plaintiff in this action) moved the court in which it was rendered'to set it aside, and for leave to answer, upon his affidavit, stating substantially the same facts alleged in his complaint herein.
“ 1. It appears that the former action was commenced-by H. K. S. O’Melveny, as attorney for plaintiff, and that his name was indorsed on the summons as attorney for plaintiff; that before the order of publication was made, an order substituting Messrs. Wells, Van Dyke & Lee as attorneys for plaintiff was made; but that the summons was published as originally issued, with the name of O’Melveny indorsed thereon as attorney for plaintiff. It is contended by respondent that the name of Wells, Van Dyke & Lee should have been indorsed on the summons as published, and that the omission so to indorse them is a fatal defect in the publication. The provision of the code requiring the name of plaintiff’s attorney to be indorsed on the summons relates to the summons as issued by the clerk, and was complied with in this case. As there is no requirement that the names of attorneys afterwards substituted for or added to the original attorney for plaintiff shall be indorsed on the summons, I think the summons was properly published in the form in which it was issued.
“2. No other defect in the form or substance of the affidavit is pointed out by counsel, and none is perceived; but it is alleged that the statements therein, that Dunlap had departed from this state, and that, after due diligence, he could not be found within this state, are not true; and the court so found. The only evidence to sustain this finding is the testimony of the plaintiff, Dunlap, to the effect that, although he departed from this state in 1879, he returned to Inyo County, in this state, in the spring of 1881, where he openly and publicly re
“ It follows that, for aught that appears by the record in this case, the former judgment is conclusive evidence that the appellant is the owner of the lots in question, and that the findings of the trial court to the contrary are not justified by the evidence. I think the appeal from the judgment should be dismissed, that the order denying a new trial should be reversed, and a new trial granted:”
Dissenting Opinion
I dissent, on the ground that the evidence does not justify the decision. I recognize the correctness of the rule stated in the cases cited by Mr. Justice De Haven; but to make it applicable, it should clearly appear from the evidence that the party charged with fraud deliberately commenced and prosecuted his action with the intent to defraud his adversary, and knowing that his claim was baseless in law and in fact. In this case the evidence, in my- opinion, fails to
Garoutte, J., concurred.
Rehearing denied.