69 Ind. 577 | Ind. | 1879
Complaint by the appellee, against the appellants, in three paragraphs, to review and set aside a judgment.
A separate demurrer was filed to each paragraph, and overruled. One ground of demurrer alleged was, that neither paragraph contained facts sufficient to constitute a cause of action.
Answers wrere filed; issues formed: a jury trial had; and a verdict returned for the appellee in the following words: “We, the jury, find for the plaintiff.” Upon this verdict, over a motion for a new trial, the court decreed that the judgment sought to be reviewed “ be, and is hereby, set aside and declared null and void as to this plaintiff, William Holmes, administrator,” etc.
The complaint is as follows :
“ Eirst ¡paragraph of the complaint :
“ Eor amended complaint, the plaintiff says he is the administrator of John Earneman, deceased ;'that February 21st, 1873, by the judgment of the White Circuit Court, the State of Indiana, upon the relation of John A. Cartwright, Auditor of Carroll County, Indiana, recovered a judgment of $43,000 against Isaac Earneman, David P. Nelson, Benjamin W. Martin, John S. Case, Jacob Earneman, John P. Richardson, Daniel Small, James R. Finley, Noah Mullen, William R. Mullen, David Kuhn, William Bridge, John W. Jackson, Anthony Garrett, William Davidson, executor of Samuel Gilliford, John B. Kann, John Sidenbender, Joseph Earneman, and Isaac Earneman, executor of John Earneman, deceased, a complete record of which judgment is herewith filed and is made a part of this complaint, marked ‘Exhibit A.’ And the plaintiff charges that the said judgment was procured by fraud, in this, to wit: Isaac Farneman was the principal m said bond and the acting executor of John Earneman, whom this plaintiff now represents;
“ And the plaintiff, avers, that no authority was ever given to any one, and by any one outside of Isaac Earneman, to bind the estate by any such agreement. The attorneys were all verbally employed by Isaac Earneman, the defaulter. And plaintiff avers, that, by reason of said
“ And the plaintiff' now makes all the parties to said judgment, other than the executor of Earneman, defendants to this suit, to answer why said judgment should not be revieAvcd and set aside as to these plaintiffs; that this plaintiff is administrator cle bonis non of John Earneman’s estate, having succeeded John A. Cartwright in said trust.
“ Second paragraph :
“And, for a second and further cause of action, plaintiff says that February 21st, 1873, by the consideration and judgment of the White Circuit Court, the State of Indiana, on relation of John A. Cartwright, Auditor of Carroll county, Indiana, recovered a judgment for $43,-000, against Isaac and Joseph Earneman, executors, of John Earneman, jointly with all the defendants to this suit, except CartAvfight, upon an official bond purporting to have been given November 13th, 1868, by the defend-' ants other than Cartwright; that Isaac and Joseph Earneman have ceased to be executors of said estate, and this plaintiff lias succeeded them in said trust; that the only sendee ever had in the original suit, a complete record and transcript of which is herewith filed and is made a part of this complaint, marked ‘ Ex. A,’ was by publication and
“ They further say, that, as appears by the terms of said judgment, the said sum of $ 1-8,000 was not the amount due; that it was accordingly referred to the eight referees therein named, to ascertain what was duo. and credit .the difference upon the said $43,000 ; that said referees computed and included in their finding $22,80® for which said bond was not liable, to wit, a defalcation
•.“They make all the parties to said suit, except the estate, parties defendants hereto, to answer what, if any, reason they have, that such judgment should not be reviewed and set aside.
“ Third paragraph : The plaintiff', William W. Holmes, administrator de bonis non, with the will annexed, of John Earneman,' deceased, further complains of said defendants, and says that the said defendant, the State of Indiana, on the relation of John A. Cartwright, Auditor of Carroll county,'Indiana, on the 21st day of February, 1873, in the White Circuit Court of White county, Indiana, recovered a judgment against the said defendant, Isaac Earneman as principal, and the rest of the defendants herein, except ’jiVilliam B. Givens, Amanda Gilliford and the said relator, Cartwright, sureties, upon the official bond of the said Isaac Earneman, as Treasurer of Carroll county, Indiana, bearing date November 25th, 1868, for the sum of $43,000, a copy of .which judgment, together with all the proceedings therein, are herewith filed and marked ‘ Exhibit A,’ and made part of this complaint, upon which said bond the names of Daniel Swall, Samuel W. Gilliford, and John Earneman (all now deceased), appear as sureties thereto; that the- said Daniel Swall died after the rendition of said judgment, and the said defendant William B. Givens is now his administrator d.e bonis non; that the said Samuel W- Gilliford died before the rendition of said judgment, and the salid defendant Amanda Gilliford is now his ad
“Plaintiff further shows that the said John A. Cartwright, on the 6th day of November, 1874, resigned his said trust as administrator de bonis .nori^ of the said John Earneman, and the plaintiff was in due form of law appointed administrator de bonis non with the will annexed of said John Earneman, deceased; that, since his said appointment as such administrator, he has, by eveiy means at his own command, to wit, by inquiring of David P. Nelson, the person who certified the acknowledgment of said bond as to said John Earneman, and such other persons as -would be likely to know, as to whether said signature to said bond was in fact genuine; that he did not discover for himself, personally, that the signature of said testator, John Earneman, to said bond was fraudulent and forged until the 30th day of March, 1875 ; that the knowledge of said material new matter was wholly within the knowledge of two persons, to wit, Isaac Earneman and David P. Nelson. The former was confined in the penitentiary, and the latter refused to tell until the said 30th day of March, 1875 ; that he could not, by any reasonable diligence, have discovered, and did not discover, that the signature of the said decedent, John Farneman, to said bond was forged, before that time or before the rendition of said judgment And plaintiff avers that the fact that said bond was not executed by the said John Farneman was not discovered by any of the legal representatives or heirs of said estate (except said defendant, Isaac Earneman, -who fraudulently concealed the same) until the said month of June, 1874; that this plaintiff'avers that the knowledge of said fact of the non-execution of said bond was concealed by
Each paragraph was verified by the affidavit of the appellee.
Neither paragraph of the complaint is sufficient to authorize the review of a judgment finder section 587 of the code, 2 R. S. 1876, p. 249, “ for any error of law appearing in the proceedings and judgment;” nor do we understand the complaint to be founded on that clause of the section. It contains no averment of error appearing upon the face of the record. But we understand the complaint to be brought upon the second clause of section 587, namely, “ for material new matter, discovered since the rendition ” of the judgment, and upon the general ground that the judgment was obtained by fraud, as against the decedent’s estate, represented by the appellee.
The proceedings and judgment sought to be reviewed, which are made a part of the complaint, show that Isaac Farneman was served by a summons individually, and as one of the executors of the will of John Farneman, deceased, requiring him to answer to the action. A summons was issued against Joseph Farneman and Jacob
The averment in the first paragraph of the complaint, that no service was had on Isaac Farneman, as executor, and the averment in the third paragraph, that Joseph Farneman did not appear to the action by attorney, are contradicted by the record; and there is nothing in the averment in either paragraph inconsistent with the fact that Joseph Farneman knew of the pendency of the suit, and knew that attorneys were appearing to the action and defending it on behalf of all the executors. Indeed, the third paragraph shows that Joseph Farneman did have knowledge of the suit, and that he attempted to excuse himself for not actively defending it upon another ground. As against any thing averred in the complaint, we must hold that the executors of the will of John Farneman, deceased, are bound by the appearance of their attorneys of record to the action they are now controverting. The law governing this question will be found in the following authorities: Hall v. Palmer, 18 Ind. 5; The Floyd County Agricultural and Mechanical Association v. Tompkins, 23 Ind. 348; Wiley v. Pratt, 23 Ind. 628; Bush v. Bush, 46 Ind. 70; Collins v. Rose, 59 Ind. 33. Perhaps the employment of the attorneys by Isaac Farneman, as executor, bound the other executors. The decision of this question does not seem necessary in this case ; but see Herald v. Harper, 8 Blackf. 170; The People v. Keyser, 28 N. Y. 226; The People v. Miner, 23 How. Pr. 223.
Is either paragraph of the complaint sufficient to review the proceedings and judgment “ for material new matter, discovered since the rendition thei’eof?”
The material new matter, alleged as the ground of review, in each paragraph of the complaint, is the discovery
It seems to us that a very- low degree of diligence would have discovered so important a fact, especially after litigation had been commenced upon it-, long before so much time had elapsed. In an action to review a judgment, on the ground of material new matter, alleged to have been discovered since the rendition of the judgment, the complaint must show by the allegation of facts, and not by a general averment, that such new matter could not have been discovered by due diligence, before such judgment was rendered, and that the complaint was filed without delay after the discovery was made. The following authorities support us in this view: Simpkins v. Wilson, 11 Ind. 541; Hall v. Palmer, 18. Ind. 5 ; Nelson v. Johnson, 18 Ind. 329 ; Comer v. Himes, 49 Ind. 482 ; Davidson v. King, 51 Ind 224; Gregg v. Louden, 51 Ind. 585 ; Barnes v. Dewey, 58 Ind. 418; Collins v. Rose, 59 Ind. 33 ; Harlen v. Watson, 63 Ind. 143.
Are the facts averred in either paragraph of the complaint sufficient to constitute a cause of action for setting aside a judgment for fraud iu obtaining it ?
A party to the record may have a judgment set aside for fraud in obtaining it, but not for fraud in the cause of
A stranger to the record may, upon case made, when he has been injured thereby, have a judgment set aside for fraud in the cause of action upon which it is founded, because he has not had his “ day in court” to plead it sooner. But, as we have held that the parties complaining in this case were parties to the record, the latter prop-, osition is not before us.
Fraud, to set aside a judgment obtained by it, must have been practised upon the opposite party. Fraud between codefendauts will not affect the plaintiff, however gross it may be. Such a rule would be subversive of the rights of the plaintiff without his fault, and could easily be practised by the defendants for their own benefit. To apply the rule to this case Fraud practised by Isaac Farneman upon his co-executors 'can not affect the rights of the State in a suit on his official bond. The only allegation having any appearance of charging fraud on the relator of the State is in the first paragraph of the complaint, and is in these words : “ The said Isaac Farneman being desirous of escaping from said indictment ” (for embezzlement), “ and Cart-wright” (the relator), “ being anxious to obtain judgment with the least trouble and for the largest sum possible, promised said Isaac leniency and mercy in said prosecution ; and the said Isaac, -without any authority so to do from his co-executor, Joseph Farneman, who had not been served with process, or, if served, who knew nothing whatever of the facts concerning the non-execution of said bond, and the liability accrued thereon, the knowledge of which fact was solely confined to Isaac Fax-neman, fraudulently combixied with Cartwright. Both, in violation of the lights of said estate, agreed upon a judgment of $4.3,000, some $3,000 more than was due upon the defalcation of Isaac Farneman for both terms.”
We have examined the authorities cited by the counsel,
Having arrived at the conclusion that neither paragraph of the complaint contains facts sufficient to authorize the relief prayed for, it becomes unnecessary to examine any other question in the' case.
The judgment is reversed, at the costs of the appellee, to he levied of the assets yet to be administered; cause remanded, with instructions to sustain the demurrers to each paragraph of complaint, and grant leave to amend, and for further proceedings.