Louis LaPresto appealed from the judgment of the Circuit Court of the City of St. Louis dismissing his petition in equity to set aside a default judgment in favor of Margherita LaPresto in the amount of $15,000, and also to set aside the sale of two tracts of land sold pursuant to an execution based on the said judgment. Jurisdiction of this appeal is in this court because of 'the amount in dispute and also because title to real estate is involved.
Subsequent to the submission of this appeal the suggestion has been filed in this court of the death of Louis LaPresto, plaintiff-appellant, and the appointment of Robert C. Reis as administrator ad litem of the estate of Louis LaPresto. We shall subsequently use the term “plaintiff” as referring both to Louis LaPresto and to the administrator ad litem.
A short statement of the history of this litigation will be helpful. In 1953 Mar-gherita LaPresto obtained a default judgment in the amount of $15,000 against her husband Louis LaPresto for separate maintenance. He was personally served with summons, but he filed no answer and no attorney appeared in his behalf. After the entry of the default judgment he filed no motion for new trial and he took no appeal. Execution was issued and certain real estate was levied upon by the sheriff and advertised for sale. A motion to quash the execution was overruled and upon appeal to this court that action was affirmed. LaPresto v. LaPresto, Mo.Sup.,
Plaintiff brought the present suit in equity against his wife Margherita and his two sons Frank and Charles. The petition is lengthy, but in substance it challenges the default judgment on two grounds. The first, which we shall designate as Part I, is that the judgment is void because of matters affirmatively shown of record, and the second, which we shall designate as Part II, is that the judgment should be set aside because of fraud in its procurement.
*651 After alleging the circumstances of the entry of the default judgment as above set out, including the fact that he was personally served but filed no pleadings and did not employ counsel, plaintiff alleged that his wife was “wholly incapable of comprehending the nature and complexities of any commercial or legal matters,” and that after Frank was admitted to practice law she has “at all times blindly done whatever was requested of her” by him, and that Frank became the “dominant factor in plaintiff’s home;” that Frank quarreled with plaintiff over “insignificant things and minor matters” with the intent to create dissension in plaintiff’s home, and he succeeded in taking plaintiff’s wife out of his home and “thereby brought about the separation of plaintiff and his wife.” Plaintiff then alleged what we shall designate as Part I of his petition, or that the default judgment “is unjust, unconscionable, inequitable, illegal and void and of no legal effect” because (a) equity and good conscience demanded that plaintiff be notified of the hearing in the suit for separate maintenance and the court had no right to hear the cause in his absence and without notice to him of the setting of the hearing when the record disclosed and the court knew that he was not represented by counsel and when an undisposed of motion was pending and nine months had elapsed since he had been served with the summons; (b) the default judgment was entered when the cause was not at issue because a motion of his wife for temporary alimony, suit money and attorney fees was pending; (c) the court had no jurisdiction to award a lump sum for separate maintenance against a defendant in default in the absence of an agreement of the parties or in the absence of some particularly unusual or extenuating circumstances, neither of which existed; (d) the lump sum of $15,000 was greater and other than that demanded in the petition; and (e) even if the judgment was “substantively permissible” the evidence introduced as to plaintiff’s financial worth, if true, “wholly failed to support a judgment for such a large sum.”
It is to be noted that as to the above allegations, which we have designated as Part I, there are no allegations that the defendants in this suit were guilty of any fraud, and there are no allegations from which fraud on their part can be inferred. In other words, with the exception subsequently noted, Part I of the petition is based on the contention that the judgment is void because of matters appearing of record which if meritorious would make it subject to a collateral attack as well as a direct attack. The exception is the last contention that the amount of the judgment was not supported by the evidence.
Plaintiff then alleged what we shall designate as Part II of his petition, or that the default judgment and the sale of his property under execution were obtained by collusion, concealment, artifice, fraud and deceit on the part of his wife and son Frank, and in support thereof he alleged that (a) (1) Frank caused plaintiff’s wife to abandon and leave plaintiff without just cause or reason and he prevented a reconciliation; (2) Frank knew plaintiff owned real estate but had taken title in the names of “nominees or straw parties” and he “did secretly procure deeds to such property with the intent of depriving plaintiff thereof;” (3) when plaintiff was hospitalized Frank caused plaintiff’s wife “to visit him and request him to sign over, by will or otherwise plaintiff’s property” (there is no allegation that any property was transferred by reason of this request); (4) Frank caused plaintiff’s wife to make unreasonable financial demands upon plaintiff and to institute the suit for separate maintenance, and he procured legal counsel for her; (5) while plaintiff was negotiating for a settlement and reconciliation Frank “did cause a default against this plaintiff and thereafter did instigate and cause a default judgment to be entered against this plaintiff in said separate maintenance action” for the gross sum of $15,-000; (6) Frank thereafter caused plain *652 tiff’s property to be sold upon execution and he instructed his wife’s counsel to bid the property in “at exhorbitantly low pricesand (7) all of the above was done by his wife and Frank “wilfully, maliciously, collusively and fraudulently and deceitfully” with the intent of harming plaintiff, “not only physically, emotionally and socially, but particularly financially;” (b) the default judgment was obtained without notice to or knowledge of plaintiff after he had been in default about eight months while negotiations for a reconciliation and settlement were going on between plaintiff and his wife and when his wife and Frank knew he was not represented by counsel and when the cause was not at issue because of the undisposed motion referred to in Part I (b) (there are no allegations that by reason of any fraudulent representation of his wife or Frank upon which he relied he was deceived into believing that no default would be taken or that no answer was necessary) ; (c) The default judgment was obtained without notice “that relief other than as prayed” was being sought and he did not learn from the negotiations or otherwise that a “lump sum in gross award” would be requested and he was thereby misled and his property was taken without due process of law; (d) that the default judgment was based on false testimony of Frank that $225 to $250 per month was required for his wife to live and that he had supported her since 1945 when in truth and fact all of the children had been contributing to her support; (e) Frank knowingly testified falsely that plaintiff was worth $75,000 when in fact he owned only the properties subsequently sold by execution, and Frank also testified falsely concerning plaintiff’s business activities and monthly income, and “to render such a judgment for an ex/iorbitant amount * * * was completely out of proportion to plaintiff’s worth * * * [and] was unreasonable and unconscionable;” (f) his wife and Frank knowingly testified falsely that plaintiff “physically threw” his wife out of their home and refused a reconciliation when in truth and fact he kept his house ready in the hope that his wife would “eventually throw off the domination and control” of Frank and “realize her mistake” and return to him, and that by reason thereof he had a good and meritorious defense to the separate maintenance action; and (g) he has exhausted all his remedies at law and the aforesaid action of his wife and Frank constitute attempts “to deprive this plaintiff of his meager income from his * * * used furniture store * * * and his cub-by hole living quarters,” and that unless the judgment and the sales of his property under execution be set aside he will be permanently and irreparably damaged.
.. The trial court sustained motions to dismiss the petition for the reason that the allegations of fact were “insufficient to constitute a cause of action in law or in equity and for the further reason that the matters complained of are by the allegations of the petition res judicata.”
The defense of res judicata was properly raised by a motion to dismiss. Section 509.290 RSMo 1949, V.A.M.S.; Hamilton v. Linn,
“A former adjudication on the same cause of action between the same parties is conclusive in the second proceeding as to every issue of fact which was or might have been litigated in the first, under what is called estoppel by judgment.
*653
A judgment between the same parties on a different cause of action is binding as to the facts actually decided, and necessarily determined in rendering the judgment, under what is called estoppel by verdict.” Abeles v. Wurdack, Mo.Sup.,
Plaintiff contends on this appeal that “the present action is a direct equitable attack on the judgment for fraud in its procurement,” and it might be contended that he has abandoned the allegations in what we have designated as Part I- of the petition. But, if he has not, we conclude that the trial court correctly ruled that the judgment in the previous appeal reported at LaPresto v. LaPresto, Mo.,
We turn to the question of whether the allegations in Part II are sufficient to entitle plaintiff to have the default judgment set aside because of fraud in its procurement. In making this determination we must treat as true the material facts well pleaded in the petition, State ex rel. Public Water Supply Dist. No. 7 of Jackson County v. James,
“The rule is well settled that a court of equity will not interfere with a judgment at law unless there was fraud in the procurement of the judgment extrinsic or collateral to the matters tried upon which the judgment was rendered.” Sutter v. Easterly,
Plaintiff’s allegations to the effect that Frank wrongfully caused plaintiff’s wife to leave him pertain to matters which might have constituted a defense to the suit for separate maintenance on the ground that his wife abandoned him without just cause. As stated above, a party is not entitled to have a court of equity set aside a judgment “because the parties neglected to litigate such matters in the original case.” Hockenberry v. Cooper County State Bank of Bunceton, supra [3]; Winchell v. Gaskill,
The allegations that Frank caused his mother to institute the suit for separate maintenance and that he advised and counseled with her do not show any fraud in the procurement of the judgment. As her son, and as an attorney, Frank had the right to advise his mother, and whether his advice concerning her right to separate maintenance was sound would have been determined at the trial on the merits of that suit.
The petition does not seek to set aside the title to any property which Frank allegedly “procured” from “nominees or straw parties” who held title for plaintiff, and that allegation adds nothing to a petition to set aside a judgment for separate maintenance in favor of Frank’s mother because of fraud in its procurement. The same result is equally true as to the allegation that at Frank’s suggestion his mother, apparently without success, requested plaintiff to convey property to her by will or deed.
The allegations that Frank caused plaintiff’s property to be sold upon execution and “instructed” counsel to bid the property in at a low price pertain to matters which occurred subsequent to the entry of the judgment, and assuming that by reason thereof plaintiff could challenge the validity of the execution sales, these facts, even if true, would not constitute a meritorious attack against the validity of the judgment
The allegations to the effect that the default judgment was obtained while negotiations for a settlement were, in progress with no notice to plaintiff that this was to be done presents a somewhat different situation. Fraud that goes “to the manner in which the judgment was procured” and which “prevented the unsuccessful party from presenting his case or defense” may be sufficient to justify a court of equity to set aside a judgment so procured. Hockenberry v. Cooper County State Bank of Bunceton, supra,
The petition also contains allegations to the effect that the trial court entered an improper judgment, that is, for an amount in gross instead of monthly payments; that it entered judgment while an undisposed of motion was pending; and as alleged in Part I, that the evidence did not support a judgment in the amount rendered. Reference is made to the opinion in the previous appeal to the discussion there and the ruling that these contentions are without merit. These are matters which should have been presented on appeal. They do not render the judgment void.
The remainder of the allegations are to the effect that false testimony was given concerning plaintiff’s treatment of his wife and concerning his financial worth. It has uniformly been held that false testimony pertaining to any fact in issue on the merits of the cause of action and to which the other party has an opportunity to make a defense does not afford equitable grounds for setting aside a judgment. Crane v. Deacon, Mo.Sup.,
After the trial court dismissed plaintiff’s petition, he offered to amend it by inserting in that part pertaining to the fact that the judgment in the separate maintenance suit was for the sum of $15,-000 instead of a fixed sum each month, an allegation to the effect that the first he knew of “defendant’s fraudulent intention” to obtain a “lump sum separate maintenance award” was “after the hearing had been concluded and the case taken under advisement.” This offer to amend was refused. Whether it was error to so refuse in view of our liberal rules pertaining to amendments is immaterial because this allegation, if incorporated into the petition, would establish that plaintiff actually knew of this feature of the proposed judgment before it was made and entered and when he had time to go before the trial court and protest if he desired.
The allegations in the petition that the various acts of defendants were fraudulently done are mere conclusions of law and add nothing to the sufficiency of the petition. Weitzman v. Weitzman, Mo. Sup.,
For the reasons above stated we conclude that the judgment of the trial court dismissing the petition should be and is affirmed.
PER CURIAM.
The foregoing opinion by STOCKARD, C., is adopted as the opinion of the Court.
All concur.