| N.Y. Sup. Ct. | Jun 30, 1893
This action was brought upon a judgment recovered by the plaintiffs against the defendant in the superior court of the commonwealth of Massachusetts. The defendant, in his answer, admitted the bringing of the suit, and that he appeared therein and set up his defense, and that judgment was thereafter entered in said suit as alleged in the complaint. In order to avoid the effect of this admission, the defendant, further answering, alleged that he had, and now has, a good and valid defense to said action, and the plaintiff had no valid cause of action; and that in November, 1890, said judgment being entered on the 5th of January, 1891, the defendant was induced by fraudulent representations and assurances of the plaintiffs, made to the defendant and one of his codefendants, and upon which he relied, to the effect that said action would be discontinued, to abandon his defense to said action, and not to appear further therein, and that the plaintiffs fraudulently and without the knowledge of the defendant procured the judgment mentioned in the complaint to be entered against him. Upon the trial a verdict was directed in favor of the plaintiffs upon the pleadings, upon the ground, we imagine, which is urged before this court, viz. that the fraud for which a judgment may be avoided must be such as prevented the defendant from ever appearing in the suit, and that when the defendant has appeared and set up
“If the court lias been mistaken in the law, there is a remedy by writ of error. If the jury has been mistaken in the facts, the remedy is by motion for a new trial. If there has been evidence discovered since the trial, a motion for new trial will give, appropriate relief. But all these aren parts of the same proceeding. Relief is given in the same suit, and the party is not vexed by another suit for the same matter. So in a suit in chancery, on proper showing, a rehearing is granted. If the injury complained of is on erroneous decision, an appeal to a higher court gives opportunity to correct the error. If new evidence is discovered after the decree has become final, a bill of review on that ground may be filed within the rules of law on that subject. Here, again, these proceedings are all parts of the same suit, and the rule framed for the repose of society is not violated. But there is an admitted exception to this general rule in cases where, by reason of something done by the successful party to a suit, there has been in fact no adversary trial, or decision of the issue in the case. Where the unsuccessful party has been prevented from exhibiting fully his case by fraud or deception practiced on him,—as by keeping him away from court by a false promise of a compromise; or where the defendant never had knowledge of the suit, being kept in ignorance by the act of the plaintiff; or where an attorney fraudulently or without authority assumes to represent the party, and connives at his defeat; or where an attorney regularly employed corruptly sells out his client’s interest to the other side,—these and similar cases which show that there has never been a real contest in the trial or hearing of the case, are reasons for which a new suit may be sustained to annul the former judgment and decree, and open the case for a new and a fair hearing.”
We think, therefore, that the court erred in directing judgment upon the pleadings, as seems to have been done, upon the ground that, the defendant having appeared in the action in Massachusetts, his defense could not be sustained. This being the only question presented upon this appeal, we think that the judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.