Friese v. Hummel, 26 Or. 145

Friese v. Hummel

26 Or. 145 | Or. | 1894

Per Curiam:

Did the complaint state sufficient facts to entitle the plaintiff to the equitable relief demanded, is the question involved in this suit. A court of equity may, by an original bill in the nature of a bill of review, set aside a decree obtained by the fraud of the prevailing party, where the acts or conduct constituting such fraud were not involved in the consideration of the merits: 2 Freeman on Judgments (4th ed.), § 485. A judgment 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 otherwise than by trying anew an issue tried in a former proceeding: 2 Freeman on Judgments (4th ed.), § 489. Frauds for which a court of equity will set aside a judg*150ment or decree must consist of extrinsic, collateral acts, not involved in the consideration of the merits. The credibility of testimony given on the trial of a cause, bearing upon the issue, is intrinsic, and has been considered 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 conclusive, by reason of the false testimony produced: United States v. Flint, 4 Sawy. 42. “Relief,” says Allen, J., in Ross v. Wood, 70 N. Y. 8, “can only be granted upon some new matter of equity not arising in the former case. Equity will not take cognizance, on the same grounds, of the very point which another court of competent authority in the case has considered and decided. ” In Tebbets v. Tilton, 31 N. H. 273, it was held that fraud in a judgment might be shown by a party when it may be done without showing any participation in the fraud, and where it does not involve a reexamination of the merits of the case. In Folsom v. Folsom, 55 N. H. 78, it was held, in a suit to impeach a decree for fraud, that evidence discovered after the trial, which showed that the decree had been obtained by perjury, was not newly discovered, but cumulative upon the same issues tried before.

In Pico v. Cohn, 91 Cal. 129, 13 L. R. A. 336, 25 Pac. 970, and 27 Pac. 537, 25 Am. St. Rep. 159, the facts showed that the plaintiff was over eighty years old, unused to business, and could not speak or understand the English language; that he owned real property of the value of two hundred thousand dollars, upon which there was an incumbrance of sixty-three thousand dollars; that, being pressed for payment, he applied to one B. Cohn for and obtained a loan of that amount, to secure the payment of which he executed and delivered an absolute conveyance of all his property; that within two months from the time he received the loan he tendered to Cohn sixty-five thousand dollars and demanded a reconveyance, and upon Cohn’s *151refusal to convey, lie commenced an action to recover said property; that during plaintiff’s negotiations with Cohn, one Pico Johnson was present, and knew that the transaction was a loan and security, and not a purchase and conveyance absolute, and shortly after the execution of the deed so stated to others; that, relying on Johnson’s knowledge of the transaction, and his statements concerning it, plaintiff called him as a witness, when, instead of testifying that the transaction was a loan and mortgage, he testified that it was a sale and absolute conveyance, and upon the strength of his evidence a decree was rendered in favor of the defendant. In a suit brought to set aside this decree, it was alleged, in addition to the foregoing facts, that plaintiff had made the discovery that Cohn had paid Johnson two thousand dollars to testify falsely, which sum was placed in the hands of one Forbes, with directions, given in Johnson’s presence, to pay it to him if he testified to an absolute sale, and that immediately after he had so testified, he demanded and received the money. A demurrer to the complaint having been sustained by the lower court, the judgment was, upon appeal, affirmed, the court saying: “That a former judgment or decree may be set aside and annulled for some frauds there can be no question; but it must be a fraud extrinsic or 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 becase it was obtained by forged documents or perjured testimony.” The reason assigned in support of this rule is that causes once tried by a court having jurisdiction of the subject matter and the parties should forever be at rest; that the unsuccessful party ought reasonably to expect, if he had an unscrupulous adversary, that perjured testimony would be offered at the trial, and should be prepared to meet it; and that, having gone into a consideration of the merits, he is estopped by *152the conclusion of the court: United States v. Flint, 4 Sawy. 42; Fed. Cas. 15121. The plaintiff not having alleged sufficient facts to entitle her to the equitable relief demanded, there was no error in sustaining the demurrer (Cotzhausen v. Kerting, 29 Fed. 821), and the decree is therefore affirmed. Affirmed.