Hughes v. United States Borax Co.

286 F. 24 | 9th Cir. | 1923

RQSS, Circuit Judge

(after stating the facts as above). The ground upon which the appellant sought by the present suit to set aside the decree that was entered in the former suit was, as stated in the original bill in the present case, in substance, that a certain witness named Davies and certain’ experts on behalf of the complainant in that suit (appellee here) gave on that trial false testimony. In the amended bill in the present case, the ground upon which the appellant sought the annulment of the original decree is stated to be, in substance, thiss That prior to the trial of the former suit the plaintiff therein conspired “with others to build up and create false facts in support of” the alleged case, which they would introduce on the tt;ial of the case, for the purpose of defrauding the defendant thereto, and for the further purpose of deceiving the court into rendering a decree in favor of the plaintiff; that the plaintiff and its alleged conspirators knew that on the trial it would be required to prove that the amount of work done on each of the claims during the years 1915 and 1916 was at least $100, and that the plaintiff so performed it; that it was a part of the alleged conspiracy that “certain fixed arbitrary figures were to be claimed by said plaintiff at the trial of said cas.e as representing measurements of the amount of work done as assessment work on each of said claims during each of said years, and said conspirators agreed upon what figures should be testified to as representing said measurements, but said figures so agreed upon by said conspirators were in truth and in fact not the figures that represented the measurement of the work done on all or any of said claims during said years or either of said years, but in truth and in fact were in each instance much higher and greater than the measurement of the true amount of work actually done on each of said claims during each of said years, all of which was known to the plaintiff and each of said conspirators”; that it was a part of the alleged conspiracy that “a certain book should be offered by the plaintiff into evidence in the trial of the case, which book was to be known as Assessment Book No. 1, and was to contain a purported account of the measurements of the work done as assessment work on each'of said claims during the year 1916, but which said book was not to contain a true or correct account of the measurements of the work actually done on said claims at said time, but was to contain figures exactly like the figures agreed upon by said conspirators as the figures which they had conspired for the plaintiff to falsely claim represented the true measurements of work actually done as assessment work on each of said claims during each of said years.” The alleged conspiracy embraced other similar probative matters which it is unnecessary to specify.

We are of the opinion that the allegations of the amended bill above referred to do not at all take the case out of the well-established rule that frauds which will justify a court of equity in setting aside or annulling a judgment or decree of a court of competent jurisdiction are such frauds only as are extrinsic or collateral to the matter tried by the first court, and not to frauds in the matter on which the decree complained of was rendered. U. S. v. Throckmorton, 98 U. S. 61, 25 L. Ed. 93. It is useless to cite the almost innumerable cases supporting that doctrine, including the well-known case of Pico v. Cohn, 91 Cal. 129, at pages 133, 134, 135, 25 Pac. 970, at pages 971, 972 (13 L. R. A. 336, 25 Am St. Rep. 159), where Chief Justice Beatty, speaking for the court, said:

“It is averred, and we think sufficiently shown, that upon proof of these facts there is a reasonable certainty that plaintiff would, upon another trial, gain his cause. Such being the ease, is plaintiff entitled to a decree vacating and annulling the former decree on the ground that it was procured by fraud? After a careful and extended examination of the authorities, we are constrained to answer this question in the negative. 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 because it was obtained by forged documents or perjured testimony. The reason of this rule is that there must be an end of litigation; and when parties have once submitted a matter, or have had the opportunity of submitting it, for investigation and* determination, and when they have exhausted every means for reviewing such determination in the same proceeding, 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 the prevailing party, by some extrinsic or collateral fraud, has prevented a fair submission of the controversy. What, then, is an extrinsic or collateral fraud, within the meaning of this rule? Among the instances given in the books are such as these: Keeping the unsuccessful party away from the court by a false promise of a compromise, or purposely keeping him in ignorance of the suit; or whore an attorney fraudulently pretends to represent a party, and connives at his defeat, or, being regularly employed, corruptly sells out his client’s interest. United States v. Throckmorton, 98 U. S. 65, 66, and authorities cited.

, “In all such instances the unsuccessful party is really prevented by the fraudulent contrivance of his adversary, from having a trial; but, when he has a trial, he must he prepared to meet and expose perjury then and there. He knows that a false claim or defense can be supported in no other way; that the very object of the trial is, if possible, to ascertain the truth from the conflict of the evidence; and that, necessarily, the truth or falsity of the testimony must be determined in deciding the issue. The trial is his opportunity for making the truth appear. If, unfortunately, he fails, being overborne by perjured testimony, and if he likewise fails to show the injustice that has been done him on motion for a new trial, and the judgment is affirmed on appeal, he is without remedy. The wrong, in such case, is of course a most grievous one, and no doubt the Legislature and the courts would be glad to redress it, if a rule could be devised that would remedy the evil without producing mischiefs far worse than the evil to be remedied. Endless litigation, in which nothing was ever finally determined, would be worse than occasional miscarriages of justice; and so the rule is that a final judgment cannot be annulled merely because it can be shown to have been based on perjured testimony; for if this could be done once, it could be done again and again, ad infinitum. But counsel for appellant seek to distinguish this ease from those in which it has been held that a judgment will not be set aside by reason of its being based upon forged documents or perjured testimony. They say that the fraud committed by Cohn was the bribing of Johnson; that this was collateral and extrinsic; that it was not and could not have been the subject of investigation at the trial of the original action. We do not think this distinction can be maintained. The fraud which Cohn committed was the production of perjured evidence in support of his defense. The means by which he induced the witness to swear falsely was but an incident.

“It may be safely asserted that a witness does not often deliberately perjure himself, without being induced thereto by some fraudulent or corrupt practice on the part of him who gets the advantage of the perjury. It isa matter of indifference what particular form such corrupt practice takes. The evil and the wrong is in the perjury which follows. In this ease the truth of Johnson’s evidence was necessarily drawn in question at the trial, and determined by the decision of the court; and. all that has since been discovered is another item of testimony bearing on that point. We cannot find any substantial ground upon which this case can be distinguished from United States v. Throckmorton, 98 U. S. 65, 66.’*

The decree of dismissal is affirmed.