67 Iowa 636 | Iowa | 1885
Tbe defendant Bowe demurred to the plaintiff’s petition, and the demurrer was overruled. He elected to stand upon bis demurrer, and decree was rendered against him. The question presented is as to the correctness of the court’s order overruling Bowe’s demurrer. The petition is a very long one, and we cannot properly set it out in full. The essential facts, as shown by tbe petition, are as follows: Tbe
The controversy upon this appeal is solely between the
We come, then, to consider as to what constitutes Bowe’s offense in this matter, so far as the petition shows. It is sufficiently shown that Bowe knew, or should have known, that he had no valid claim for commissions, and brought his action, not only with such knowledge, but also with the knowledge that Gibbs held a contract of indemnity executed to him by the plaintiff. This is all that we can discover. The averment that Bowe fraudulently colluded with-Gibbs is an averment of the conclusion which the plaintiff claims should be drawn from the facts, and is proper to be considered only as such.
Where a person brings an action upon a claim which he knows is invalid, and obtains a judgment by reason of the testimony of mistaken witnesses, or by reason of a mistaken view of the law on the part of the court, he is, without question, guilty of a great moral wrong, and not a word of
While the case before us is not this, we have taken some pains to state the rule as between a judgment plaintiff and defendant, because we think that it has an important bearing. In the case before us it is not the judgment defendant who is complaining, but a person who had given him a contract of indemnity; and we have to determine whether this person can have relief against the judgment upon an averment that the judgment plaintiff had knowledge of the invalidity of his claim. It is shown that Bowe had knowledge of the contract given to Gibbs by Merrill. Now, if Bowe had agreed with Gibbs that notice of the action should not be given to Merrill, and notice had not been given, and Bowe had prosecuted his claim to judgment knowing that it was not a just claim, we are not prepared to say that his action might not have been deemed fraudulent as against Merrill; for, while we do not think that the judgment in such ease would be conclusive as against Merrill, yet the judgment and con
It may be that these matters may properly enough he urged by Merrill against the conclusiveness of the judgment if Gibbs should set it up in an action against him. But, however this may be, we think that Merrill’s rights against Bowe are the same as they would have been if, when notified of the action, he had appeared and made defense, unless his failure to make defense was brought about by something for which Bowe was responsible; and we have to say that we have searched the petition in vain for the averment of any fact which so shows. We do not see, therefore, how a court of equity can set aside Bowe’s judgment without contravening well-recognized princijFes of law. The decree, therefore, of the circuit court must be
Reversed.