10 S.D. 511 | S.D. | 1898
This case was decided at a former term of thjs court, and is reported in 9 S. D. 184, 68 N. W. 287. Upon a proper petition, a rehearing was granted. It will be observed that, in affirming the order appealed from, we proceeded upon the theory that, as the whole answer of the defendant was not before us, we could not properly determine whether or not the
It will be observed that the appellant, in effect, seeks to impeach the judgment recovered by the respondent against Schaack, by setting up matters which might have constituted a defense to that action, and which were or might have been tried therein. Howard v. City of Huron, 5 S. D. 539, 59 N. W. 833; Id., 6 S. D. 180, 60 N. W. 803. The issues as to whether
As to the conclusiveness of a judgment rendered by acourtof competent jurisdiction, in the absence of fraud or collusion, in an action against an alleged fraudulent grantee, the authorities are conflicting. We are of the opinion, however, that the weight of authority is decidedly in favor of its conclusiveness, and, in the absence of an allegation or proof of collusion or fraud, a judgment, when rendered, by a court of competent jurisdiction, and in the regular course of judicial proceedings, is conclusive evidence of the debt and its amount, and that the party in whose favor it was rendered stands in a relation to be affected and injured by the conveyance. There may have been error or irregularity in its rendition, or laches in making a defense against it, but these questions are determined by the judgment, and they cannot be retried in a collateral proceeding against the grantee. Sidensparker v. Sidensparker, 52 Me. 481; Swihart v. Shaum, 24 Ohio St. 432; Candee v. Lord, 2 N. Y. 269; Wingate v. Haywood, 40 N. H. 437; Pickett v. Pipkin, 64 Ala. 520; Ferguson v. Kumler, 11 Minn. 104 (Gil. 62); Scott v. Wagon Works, 48 Ind. 75; Strong v. Lawrence, 58 Iowa 56,
The second paragraph stricken out presents a more difficult question. The intention of the pleader is not entirely clear. It would seem, from the preceding paragraph, that a part of the machinery sold Schaack by respondent was recovered from Schaack in the former action; and the pleader, in the paragraph under consideration, seeks to raise the issue that the appellant was not allowed a sufficient deduction for the machinery so taken by the respondent. If we are right in our construction of the paragraph, that was a matter that could have been litigated in the former action, within the principle announced as to the former paragraph. But, in any view, the striking out of the paragraph does not constitute reversible error, as substantially the same facts are set up in the latter paragraph of the defense, not stricken out. These conclusions jiead to an affirmance of the order of the circuit court. We assume in this case, without deciding, that the order striking out a part of the defense is an appealable order, as no motion was made to dismiss the appeal upon the ground that the order was not appealable, though counsel for respondent suggests in his brief that the same is not appealable. The order of the circuit court is affirmed.