Windsor v. Holloway

164 P. 1177 | Or. | 1917

Opinion by

Mr. Chief Justice McBride.

The power of the court to make the order is amply sustained by the authorities: Schwede v. Hemrich, 29 Wash. 124 (69 Pac. 643); Carrothers v. Carrothers, 107 Ind. 530 (8 N. E. 563); Ex parte Shear (Shear v. Box), 92 Ala. 596 (8 South. 792, 11 L. R. A. 620, and notes); Buckles v. Chicago M. & St. P. Ry. Co., 47 Fed. 424. The order was interlocutory and was not appealable pending the expiration of the 90 days given plaintiff in which to comply therewith: Roth v. Wallach, 59 Misc. Rep. 515 (110 N. Y. Supp. 934); Trogdon v. Brinegar, 26 Ind. App. 441 (59 N. E. 1066). There was no abuse of discretion by the court. In a prior suit between the same parties, wherein the same subject matter was involved and the identical relief sought as in the present case, there was a decree in favor of the defendants declaring that the judgments mentioned in the plaintiff’s complaint therein, the satisfaction of which plaintiff was seeking by that suit to set aside, had been fully discharged and satisfied, and the plaintiff was enjoined from setting up, prosecuting or attempting to proceed upon said judgments: Windsor v. Mourer et al., 76 Or. 281 (147 Pac. 533, 1190). That decree has never been set aside, nor is there any attempt to set it aside in the present suit, in which it is alleged that certain material evidence used in the former cause was false and forged, and that such forgery was unknown to plaintiff at the time of the trial, although known to the defendants.

This is an attempt to retry the case in another suit without setting aside the first decree, which cannot be done. In addition the weight of authority is to the effect that a decree cannot be impeached in a suit in equity merely upon allegations that it was procured by perjured testimony: 23 Cyc. 1027, 1028; Friese v. Hummel, 26 Or. 145 (37 Pac. 458, 46 Am. St. Rep. 610). Tbe reason for tbis rule is obvious. If a defeated party can be allowed to retry a suit on'tbe ground tbat material testimony given therein was perjury, by tbe same token be could, if defeated, retry tbe second suit by alleging tbat perjured testimony bad been introduced, and so on so long as be bad tbe means to maintain successive suits. Tbe court, no doubt took into consideration the previous litigation between the parties, tbe vagueness of tbe allegations in tbe complaint, and tbe failure of tbe plaintiff upon the former trial to produce tbe testimony of Mrs. Campbell, or to take her deposition, although tbe genuineness of tbe power of attorney and tbe satisfaction of tbe judgment were controverted questions in tbat suit. Tbe failure of Mrs. Campbell in her affidavit filed upon tbe present motion to deny tbat she received from tbe defendants $6,570 in settlement of tbe judgments and for tbe purpose of having them satisfied throws such suspicion on tbe bona fides of tbe case tbat we cannot say tbe court abused its discretion in requiring tbe plaintiff to pay tbe costs incurred upon tbe trial of the former cases before requiring tbe defendants to relitigate tbe same matter which bad been decided in a previous suit. The Appeal is Dismissed.