154 P. 959 | Utah | 1915
Lead Opinion
The plaintiff, respondent in this eonrt, commenced this action against the defendants, appellants here, to vacate a judgment and to enjoin its enforcement. The judgment in question was obtained against respondent by the appellant William R. Forsythe in the justice’s court of Murray. City, Salt Lake County. Appellant Francis G. Luke was the attorney for Forsythe in the justice’s court, and he and James A. Lúke are the principal stockholders of the appellant Merchants’ Protective Association, a corporation, which is a collecting agency through which the judgment in the justice’s court was ob
All the defendants appeal from the judgment. They assail the sufficiency of the evidence to sustain the findings, and insist that the judgment is “against law.” What they really complain of is perhaps best stated in their own language which is found on page 4 of their brief as follows:
“Appellants have assigned very many errors, but we shall not discuss them separately. They principally relate to our contention that the judgment is against law, and that any finding of fraud is without support in the evidence.”
It is not necessary to refer to the pleadings, except to state' that the complaint contained the entire history of the case and alleged collusion and fraud and contained a plea of payment, as well as one of the statute of limitations, as defenses to the cause of action alleged in the justice’s court. The collusion and fraud were denied in the answer, and the certiorari pro-" ceedings had, as shown on the appeal to this court and the
‘£ That on or about the 15th day of January, 1904, at Murray City, Salt Lake County, state of Utah, the defendant became indebted to the plaintiff in the sum of '$183 on account of labor performed by the plaintiff to the defendant, oh or about the day aforesaid, at defendant’s special request. That the defendant has not paid the same, nor any part thereof.”
Judgment was asked for the amount stated. The complaint was signed by Francis G-. Luke as attorney, but was not verified as required by Comp. Laws 1907, Section 3685.- Summons was duly issued, which was served on respondent on the 25th day of February, 1907, and two days thereafter respondent, by his attorneys, who lived and had their offices in Salt Lake City, deposited in the United State post office, postage prepaid, a demurrer in due form addressed to the justice before whom the complaint was filed. Said justice received said demurrer and indorsed thereon the following: “Rec’d. 2 — 28—’07.” He did not file the same in the action for the reason, as he afterwards said, that he held the same for a ten cent filing fee. The justice, without notice of any kind to either the respondent or his attorneys, and notwithstanding he had received and retained the demurrer as aforesaid, on the 11th day of March, 1907, entered a judgment by default against respondent for the full amount claimed in the complaint. On the hearing of the case at bar it was established without question that in entering the judgment in question the justice heard no evidence whatever; that the claim for which suit was brought was for services which Forsythe claimed he had rendered for respondent during the years 1898, 1899, and 1900 in Sevier County, Utah, and for which services he had been fully paid. The cheeks issued by respondent and delivered to Forsythe in payment for said services were produced in evidence, the last one of which is dated April 30, 1900. Neither
The justice was called as a witness by respondent, and he admitted that he received the demurrer as before stated, and
The only question for us-to solve is whether, under the facts and circumstances, the district court erred in granting the relief before stated.
"From the evidence I find the defendant is indebted to plaintiff in the sum of $200.30, including interest. ’ ’ ■
“If there is fraud upon the part of the court or judge, there seems to he no reason why it does not constitute as complete a ground for relief as if the prevailing party had been guilty thereof. Such fraud can hut rarely occur without a conspiracy between the judge and the party benefited, and, even if there be not such conspiracy in the beginning, the party benefited ought to be regarded as joining therein when, being informed thereof, he seeks to retain its advantage” (citing cases).
“It is well settled that a court of equity will restrain proceedings, upon a judgment at law, where its enforcement is against conscience, and the same has been recovered by an unfair advantage.*582 Wherever, by accident, mistake, fraud, or otherwise, an unfair advantage has been obtained in proceedings at law, and it is against conscience to make use of such advantage, a court of equity will restrain the party from making use of the same; and, after judgment, any facts which prove it to be against conscience to execute such judgment, and of which the injured party could not avail himself in defense of the suit, will authorize the court to interfere by injunction and restrain the party from enforcing the judgment. These are familiar principles, and are not questioned by the parties to this controversy.”
In Lockwood v. Mitchell, 19 Obio 451, 53 Am. Dec. 438, tbe court, in referring to tbe law upon tbe subject, says:
“A decree or judgment receives its force from the fact that it is the decision of a competent tribunal, before which both the parties have had an opportunity of appearing and prosecuting their claims and having them fairly adjudicated. When this is prevented by the fraud or circumvention of one of the parties, without the fault or negligence of the other, the decree or judgment of the court ceases to have its binding effect, and it is competent for the party injured to resort to a court of chancery to obtain relief.”
In Bibend v. Kreutz, 20 Cal., at page 115, tbe Supreme Court of California quotes and adopts tbe language from Story’s Equity, Section 885, as follows:
“ ‘In general,’ says Story, ‘it may be stated that in all cases w|iere, by accident, or mistake, or fraud, or otherwise, a party has an unfair advantage in proceedings in a court of law, which must necessarily make that court an instrument of injustice, and it is therefore against conscience that he should use that advantage, a court of equity will interfere and restrain him from using the advantage which he has thus improperly gained.”
The question is thoroughly discussed in High on Injunctions, Sections 190 to 208, inclusive, to which we refer tbe reader. In Section 200, in attempting to formulate a general rule, the author says:
“Illustrations of the rule as above stated are numerous, but the same general principle of preventing one who has gained a legal advantage by fraud from availing himself of its benefits will be found to underlie them all.”
Of course, to be entitled to relief, the applicant must come into a court of equity with clean hands; he must have exhausted his legal remedies, be free from laches, and ordinarily
In Wagner v. Shank, 59 Md. 322, the Court of Appeals of Maryland, in referring to a judgment which was entered by default by a justice under a statute which, like ours, required the justice to hear evidence, it is said:
“Judgments entered up as these were are simply shams, mere attempts to create debts by the forms of law where none were ever proved to exist, or where none in fact ever existed.”
“Said writ shall issue at any time, after judgment, and the district court shall, pursuant to said writ, inspect and review the proceedings had in the justice’s court, and shall determine whether said justice’s court had jurisdiction of the cause of action or the person of the defendant, and had regularly pursued its authority as prescribed by law.” (Italics ours.) .
After the judgment sought to be vacated herein had been entered we held that a party could waive the notice of entry of judgment provided for in the amendment of March 25, 1907, supra, and that a direct attack upon the judgment constituted such a waiver. State v. District Court, 38 Utah 138, 110 Pac. 981, Ann. Cas. 1913B, 437. When, therefore, an appeal was taken to the district court after the certiorari proceedings had failed, Forsythe instituted prohibition proceedings to restrain the district court from hearing said appeal. In that proceeding he was successful. Forsythe v. District
“But this rule in terms recognizes the doctrine, which is equally well settled, that where a party is not in fault hy failing to use reasonable diligence, and is prevented from defending the action at law, by fraud or accident, or the acts of the opposite party, equity will lend its aid and give relief.”
The only laches that can be attributed to counsel is that they did not avail themselves of the amendment of 1907 respecting the right of appeal. Under the law, as it stood when the judgment was entered, the right of appeal had lapsed long before counsel and appellant learned of the judgment. Why should respondent, with regard to that law, be charged with laches any more than Forsythe or his attorney? After the amendment of 1907 it became their duty to serve the notice of entry of judgment, but they failed to do so, and made no attempt to do so until August 10th, after respondent had instituted the certiorari proceedings, and had thus waived his right to the notice. By the justice’s conduct respecting the demurrer respondent’s counsel were induced to believe that the ease was still pending on demurrer. From all the facts and circumstances it is clearly inferable that either the justice or Forsythe’s counsel, or both, intended to conceal the fact that the judgment was entered until the time for ah appeal had elapsed, and that they fully believed that they had done so when they issued the execution upon the judg
We desire to add in conclusion that we have not considered the question of whether this proceeding is a direct or collateral attack upon the judgment in question for the reason that the presumptions that usually apply to judgments of courts of record or of general jurisdiction under our statute have no application here. Neither have we considered the question that respondent made no application in the justice’s court to set aside the judgment, as under certain circumstances he might have done, since, when he or his counsel learned of the judgment, the justice, under our statute, had lost jurisdiction of the case and had no power to entertain such a motion.
For the reasons stated, the judgment of the district court is affirmed, with costs to respondent.
Dissenting Opinion
(dissenting).
On the 9th of February, 1907, Forsythe, in the justice’s court, commenced an action for services rendered, against McMillan by the filing of an unverified complaint. Summons showing personal service on McMillan on the 25th of Febru
“From the evidence I find the defendant is indebted to plaintiff in the sum of $200.30, including interest. It is therefore ordered and adjudged by the court that plaintiff have and recover from the defendant the sum of $200.30, and costs taxed at $3.40, C. F. Durand, justice of the peace.”
It was, however, made to appear, aliunde the justice’s record, that before default day the attorneys for McMillan mailed to the justice a demurrer to the complaint which was received by him. The filing fees required by the statute having not been tendered nor paid, the justice did not file the demurrer, but placed it in an envelope and indorsed thereon “Held for fees,” and kept it about his office, but not with the files and records of the ease. The justice, treating the tender of the demurrer without payment of fees as no appearance, later entered the default and judgment. There the matter stood until in July, 1910, when an execution was issued on the judgment. It was claimed by McMillan that until the service of the execution he had no knowledge that a judgment had been taken against him, he assuming that his demurrer had been filed, and that the case during 'all that time was pending on demurrer. Because no notice of the entry of the judgment had been given him as required by statute to set in motion his time to appeal, McMillan had the right to prosecute an appeal from the judgment to the district court within 30 days from the time he first obtained notice or knowledge of the entry of the judgment, which was in July, 1910. He then took no appeal. Instead he applied to the district court for, and was given, a review by certio-rari of the justice’s record and proceedings by which review he sought to have the justice’s judgment annulled and vacated on the alleged ground that the mailing of the demurrer and
I think it well settled that the fraud for which equity will relieve against the enforcement of judgments is that practiced in the procurement of the judgment, and not that which taints or vitiates the cause of action upon which the judgment was founded (1 High on Injunction, Section 190A), and must be extrinsic and collateral to the matters involved in the issues or trial at law (23 Cyc. 1024), and must be actual and positive and not merely constructive (Ross v. Wood, 70 N. Y. 8), and that the party seeking.the relief must show that his situation was not due to his own fault or neglect in failing to plead to or defend the original action, or otherwise to watch over, protect, and assert his rights in the proceedings, or to apply in due season for such remedies hs were open to him by appeal or other proceedings to vacate the judgment (23 Cyc. 979). These propositions are not seriously controverted. The court found that the Lukes, knowing that the demurrer had been mailed to and received by the justice, and that McMillan had a good defense to the complaint, induced the justice not to file the demurrer. I do not see any evidence to support the finding. It is not claimed that the demurrer was served on any one — it was not required to be served — nor is it claimed that the Lukes’ attention, in any manner, was called to the demurrer, or that any one said anything or eommuni-ctated anything to them concerning it. It is not even shown that J. A. Luke had anything whatever to do with the case. F. G. Luke, as appears by the complaint filed before the justice, acted as the attorney for Forsythe. But it is not shown that he had any knowledge that a demurrer had been
- I think the justice’s-fees were waivable, and that before he withheld the demurrer from filing he ought' to- have demanded his fees, which he did not do, and that that was■ ground on an application therefor to have set aside the default and judgment. But when equity is invoked to annul the judgment on the ground of fraud, that is another matter. Because the justice erroneously or improperly withheld the demurrer from filing because his fees were not paid does not, in itself, justify a charge of fraud on the part of the justice or of the plaintiff, or his attorney. Were that true, then mere errors made by a justice would, in equity, be ground to annul judgments- rendered by him. The complaint in this action proceeds on the theory of actual fraud and connivance between the justice and Forsythe’s attorney in withholding and not filing the demurrer. Whatever speculation may be
The point also is made that the complaint before the justice was not verified. Because of that I do not think the justice was without jurisdiction to, proceed. The complaint admittedly states facts sufficient to constitute a cause of action. Another point is made that the justice entered the judgment without evidence. His record, in effect, recites that the judgment was entered upon evidence. It recites that:
"From the evidence I find that the defendant is indebted to the plaintiff in the sum of $200.30.”
The dictrict court, in this action, does not find that the justice’s judgment was rendered or entered without evidence. What the court found is:
"That there was not sufficient evidence offered or received by the said justice at the time of the' entry of said • judgment, or at anytime prior thereto, in support of said complaint. ’ ’
It is not disclosed in this case what evidence was offered or received by the justice. Nor does the proof show that no evidence was offered or received, or that the justice’s recital in such respect is false. The only proof as to that is the testimony of the justice, who testified that:
‘1 There were many judgments entered upon the same basis— nonpayment of fees~and this case made no more impression upon my mind than any other case. I do not remember whether there was any evidence taken in this-case or not” —and the testimony of Luke who testified:
"I do not remember anything about it now.”
These witnesses were called by the plaintiff, and'by them it was expected to prove that the judgment was entered without evidence. I do not think that the testimony given by them is proof of such fact; at least not sufficient to overcome the recitals of the justice’s record that the judgment was entered upon evidence. Merely to call witnesses, though they
It is also contended that there is no merit to the complaint filed before .the justice for the reason that the evidence in this ease, without dispute, shows that the claim sued on before the justice had been paid and was barred. Of course, in this action to annul the judgment entered by the justice, the plaintiff here, among other things, was required to show that he had a meritorious defense to the complaint filed before the justice. But the issue as to whether the plaintiff in the justice court ought to have prevailed on his complaint, or the defendant on his defense of payment or bar of the statute, was not before the court for adjudication. Since such defenses were material only to the inquiry of whether the plaintiff had any defense to the complaint in the justice’s court, any offer of the defendants to prove that the claim had not been paid, and that the statute had not run, or was tolled, would have been impertinent, just as it would have been impertinent to have offered proof in support of the allegations, of the complaint filed before the justice. What the plaintiff by this action contends is that he, in the justice’s court, was prevented through fraud from interposing and making such defenses, and for that reason seeks to have the judgment annulled, and set aside in order that he may properly make and show them. But notwithstanding that, the district court in this action stated the conclusion “that the alleged claim upon which said action (in the justice’s court) was. founded has been duly paid and satisfied,” and was barred. Thus, the defenses which the plaintiff showed he could interpose and make to the complaint in the justice’s court, if the judgment be annulled and set aside, the court, in this action, adjudged in plaintiff’s favor as though the court had before
But aside from these considerations I think the plaintiff must be denied relief in equity on the ground that he had a complete remedy by appeal, but wholly, through his own fault and neglect and without any fault or interference whatever on the part of the defendants, or either of them, failed to avail himself of it. Let it be conceded that the plaintiff presumed that the case in the justice’s court for more than three years was pending on demurrer, and that he had no knowledge that a judgment had been-taken against him until the service of an execution in July, 1910. He then, within thirty days thereafter, had the right to prosecute an appeal from the justice’s judgment to the district court. This he did not do until nearly two years thereafter, and after he had unsuccessfully pursued a wrong and unavailing remedy and had long lost his right to appeal. It is claimed that he did not then know that he had the right to appeal. But from the time of the mailing of his demurrer in February, 1907, to the presentation and submission of this cause, he, in all that he did, was represented by counsel. But it is said that they also did not know that then the right of an appeal existed, and for that reason unsuccessfully sought relief by certiorari, and when that was ended the right to appeal had long expired. 41 Utah, 16, 123 Pac. 621. It is familiar doctrine that equity will not relieve against a judgment at law where complete relief against the judgment could have been had by appeal but which, through the neglect or fault of the aggrieved party, and without the fault of his adversary was not taken. To invoke equity in such case because of the want of knowledge that the right of an appeal existed, or losing it by mistaldng and pursuing an unavailing and inappropriate remedy, is to do violence to the familiar maxims, that “ignorance of the law excusses no one,” and “that to be ignorant of the law is gross neglect, ’ ’ and to the principle that an election of remedies is final and conclusive. I, therefore, think the judgment should be reversed.