Strand v. Griffith

144 F. 828 | 9th Cir. | 1906

GILBERT, Circuit Judge,

after stating the case as above, delivered the opinion of the court.

The bill presents the question whether a Circuit Court of the United States can revise or set aside a final decree rendered by a state court which had jurisdiction of the parties and of the subject-matter of the suit, upon the ground- that the decree was obtained by fraud, when the injured party "has had an opportunity to apply to the state court to revise the decree. This question has been determined adversely to ttie contention of the appellants by the Supreme Court, in Graham v. Boston, Hartford & Erie R. R. Co., 118 U. S. 161, 6 Sup. Ct. 1009, 30 L. Ed. 196, and Nougue v. Clapp, 101 U. S. 551, 25 L. Ed. 1026, and by this court in Denton v. Baker, 93 Fed. 46, 35 C. C. A. 187. See, also, 1 Black on Judgments, § 297. The appellants base their demand on the relief which is sought on the fact that they did not discover until several months after the decision of the case in the state court that J. M. Griffith was a party to the conspiracy which is se„ forth in the bill. But that fa'ct, if material, could afford no excuse for their failure to apply to the state court on the discovery of the fraud, and it presents no obstacle to the application of the rule. The appellants cite the decision of the Supr'eme Court of Washington in Griffith v. Strand, 19 Wash. 686. 54 Pac. 613, and we are permitted, therefore, to refer to that decision and to the light it affords on the questions which were presented on the hearing of the case in the superior court. In that case the appellants as defendant to the foreclosure suit set up in their answer the false and fraudulent representations of Campbell, Buck, and Skinner which are alleged in the bill in the present case. A demurrer to the answer was sustained by the superior court. On appeal to the Supreme Court of the state the question to be determined was whether the trial court had erred in sustaining the demurrer. The Supreme Court, referring to the allegations of the answer, held that the purchaser of a stock of goods cannot avoid the sale on the ground of fraud or false representations as to the quantity, quality, and value of goods, when there was no fiduciary relation between the parties, and when it was in the purchaser’s power to readily determine the truth or falsity of such representations by an inspection of the goods, it is true that in that case no averment appears to have been made in the answer that those representations were repeated and affirmed by J. M. Griffith, and were relied upon by the appellants at the time when the mortgages were executed and at a time when there was no opportunity to inspect the goods, but those facts were as well known to the appellants at the time when they made their defense to the foreclosure suit as now, and they should have been alleged in their answer.

The additional averment that the appellants did not discover until November, 1898, that J. M. Griffith was the owner of the goods and a party to the conspiracy to defraud them from its inception does not appear to us to present matter which strengthens or is essential to the appellants’ case. But, if we are wrong in this, there can be no doubt that it is matter that should have been presented to the superior court upon its discovery by the appellants a few months after the final decree of that court, and that it cannot he the basis of relief in this court presented as it is by a hill filed herein more than five years after the date of that decree. There is no equitable ground on which the bill can be sustained.

The decree of the Circuit Court is affirmed.