United States v. Gleeson
90 F. 778
2d Cir.
1898
Check Treatment
LACOMBE, Circuit Judge.

We have here a suit, the object of which is to vacate, set aside, and annul a judgment of a court having jurisdiction to make such judgment, on the sole ground that defendant induced such court to make such judgment by his own false and perjured testimony. It would seem to be within the.rule laid down in U. S. v. Throckmorton, 98 U. S. 66, viz. that a “court will not set aside a judgment because it was founded on a fraudulent instrument or perjured evidence, or for any matter which was actually presented and considered in the judgment assailed.” This case is cited with approval in Hilton v. Guyot, 159 U. S. 207, 16 Sup. Ct. 139. It has been contended that Marshall v. Holmes, 141 U. S. 598, 12 Sup. Ct. 62 (a suit arising in Louisiana, the Code of which state apparently authorizes such an action) is so inconsistent with U. S. v. Throckmorton that it must be held to have overruled the last-mentioned case. Such is the conclusion apparently reached by the circuit court of appeals in the Seventh circuit in Graver v. Faurot, 22 C. C. A. 156, 76 Fed. 257,—a cause which has had an interesting history. See 64 Fed. 241, and 162 U. S. 435, 16 Sup. Ct. 799. The rule of stare decisis, however, leads this court to a different conclusion. Precisely the same question — as to the effect of Marshall v. Holmes upon U. S. v. Throckmorton—was before us.in the case of Bailey v. Sundberg, 1 U. S. App. 101, 1 C. C. A. 387, 49 Fed. 583. In that cause the libelant, who had been defeated in an action in rem against a steamship, brought a new action in personam against her owners. This court *779held that the decree in the earlier suit precluded Bailey from a re-examination of (he same questions in the later suit. Subsequently he amended his libel, charging that, without negligence or laches or other-fault on the part of the libelants, the respondent, by his false evidence given in the action in rem, enabled the claimants of the steamship to obtain the judgment therein, which judgment was set up as res ad-judieata. Exceptions to this amendment were sustained by the district court, and the libel dismissed. Upon appeal to this court the decree of the district court was affirmed upon the authority of U. S. v. Throckmorton, no opinion being written. The libelant thereupon twice appealed to the supreme court for a certiorari, upon briefs which presented with very great fullness the apparent conflict between the two cases in 98 U. S. and 141 U. S., and 12 Sup. Ct., and urged upon the consideration of the court that the judges in the Second circuit: were following the earlier, rather than the later, decision. Both applications were denied. 145 U. S. 628, 12 Sup. Ct. 239; 154 U. S. 494, 14 Sup. Ct. 1142. Until the attention of this court is called to some decision of the supreme court, other than Holmes v. Marshall, criticising or limiting the doctrine of U. S. v. Throckmorton, it would seem that the principle of stare decisis should preclude its entertaining a bill which seeks to vacate or annul a judgment solely on the ground that such judgment was procured by means of the perjured testimony of the party whom it benefits. The decree of the circuit court is affirmed.

WALLACE, Circuit Judge, dissenting.