Abell v. Partello
| Decision Date | 18 January 1927 |
| Docket Number | 37165 |
| Parties | ADELINE S. ABELL et al., Appellants, v. FLORENCE SHIPLEY PARTELLO et al., Appellees |
| Court | Iowa Supreme Court |
Appeal from Palo Alto District Court.--D. F. COYLE, Judge.
This is a bill in equity, asking to vacate a judgment and to award a new trial. The district court dismissed the petition, and the plaintiffs have appealed.
Affirmed.
McCarty & McCarty, Charles V. Imlay, and Arthur W. Smith, for appellants.
Deacon Good, Sargent & Spangler and W. H. Morling, for appellees.
EVANS J. STEVENS, DE GRAFF, and ALBERT, JJ., concur. MORLING, J. not participating.
The judgment under attack was a decree entered in the same court in the case of Partello v. White, wherein the plaintiff in that case (defendant in this) obtained decree, and wherein such decree was affirmed in this court. See Partello v. White, 197 Iowa 24, 196 N.W. 719. The salient facts, and the principal questions involved, are set forth in our opinion in the cited case. The facts set forth therein and the questions discussed therein may be deemed incorporated herein by this reference, and we shall avoid herein, as far as possible, undue repetition. The decree in that case was entered in November, 1921. The petition herein was filed in March, 1924. The grounds for a new trial stated in such petition are: (1) Fraud in obtaining the same; (2) newly discovered evidence.
The original suit was brought by Florence Partello against the plaintiffs herein, as the defendants therein, and against the executors of the estate of D. J. Partello, Sr., to enforce specific performance of an agreement to make a will. The controversy was over the title to a farm of 480 acres in Palo Alto County, Iowa. This farm was owned in his lifetime by Partello, Sr., who resided at Washington, D. C., and who died in August, 1920. His son, D. J. Partello, Jr., had preceded him in death in January, 1920. Mrs. Abell and Mrs. Horst were the only surviving children of Partello, Sr., and were devisees under his will. In May, 1912, Partello, Sr., had executed his warranty deed of the farm in question to his son, Partello, Jr., and sent the same to him by mail. This deed was held by Partello, Jr., unrecorded, and was in his possession at the time of his death. Upon the death of Partello, Jr., the father purported to renounce the deed, and demanded possession thereof from the widow, Florence Partello, on the ground that it had been delivered to his son only on condition that it should become void in the event that the son should predecease the father. This demand was resisted in the first instance by the widow, Florence Partello, and the controversy thus resulting was compromised by an agreement whereby Partello, Sr., agreed to execute, and did then and there execute, a codicil to his will, devising such farm to said Florence. In consideration of the execution of such codicil, Florence surrendered the deed. This codicil was later revoked by Partello, Sr., by the execution of another codicil, whereby he devised the farm in equal parts to Florence and his two daughters. The decree in the original suit sustained the agreement of compromise, and decreed the same obligatory upon Partello, Sr., and awarded to the plaintiff therein the title to the farm, pursuant to such agreement.
The fraud charged in the present bill amounts to a charge of perjury against Florence Partello, in that she knew the conditions under which her husband had received the deed from his father, and that she falsely concealed and denied such knowledge. The newly discovered evidence relied on consists mainly in the testimony of two witnesses, Mrs. McElwee and Miss Helmick. The testimony of these two witnesses tended to show that they had seen in the hands of Partello, Sr., in the year 1918 or 1919, a writing purporting to recite the conditions upon which the deed in question was delivered to Partello, Jr., and that the same purported to be signed by Partello, Jr. Some of this testimony also purported to recite a conversation had with Partello, Jr., and also participated in by Partello, Sr., in the year 1913, in the city of Berlin, Germany, wherein the conditions attending the delivery of the deed in question were recited, and were mutually acquiesced in by father and son. The witness Mrs. McElwee also produced a letter which she had received from Partello, Sr., bearing date March 19, 1920, wherein Partello, Sr., recited all the purported facts and conditions attending the delivery of such deed, and wherein also he purported to recite the transaction following the funeral of his son, and had in the city of Chicago, wherein he executed a codicil to his will, and received from Florence Partello the return of the deed formerly held by the son. This evidence, so far as it were admissible, tended to support the contention of the executors and devisees of Partello, Sr., that the delivery of the deed in question to Partello, Jr., was conditional. The fraud charged against Florence Partello is that she knew these facts, and falsely testified in contradiction thereto. The charge of fraud, therefore, is the resultant of the alleged newly discovered evidence bearing on the material issues of the original case. The proof of such fraud is wholly dependent upon such newly discovered evidence. Such newly discovered evidence being contradictory to the testimony of Florence Partello on the original case, it is deemed by the appellant to be sufficient proof of perjury on her part; and it is considered that perjury upon a material issue necessarily constitutes fraud. In other words, the fraud charged in the petition consists of the perjury of Florence Partello, as a witness on the trial.
The rule is settled, under our previous cases, that the fraud of which a court will take cognizance in an equitable proceeding to vacate judgment or decree after the expiration of one year must be such as was collateral to the proceeding and issues in the original case. The fraud charged cannot be predicated upon a conflict of evidence in the trial, nor even upon perjury committed therein. The relative weight of evidence and all charges and countercharges of perjury are deemed necessarily adjudicated in the original proceeding. This was expressly held in Croghan v. Umplebaugh, 179 Iowa 1187, 162 N.W. 596; Holmes v. Holmes, 189 Iowa 256, 176 N.W. 691; Hedrick v. Smith & Reed, 137 Iowa 625, 115 N.W. 226; Graves v. Graves, 132 Iowa 199, 109 N.W. 707; and Conrad v. Hopkins, 195 Iowa 1162, 1167, 193 N.W. 437. In the case last cited, we quoted with approval the following, from Pico v. Cohn, 91 Cal. 129 (13 L. R. A. 336):
We must, therefore, hold herein that the charge of fraud, as distinguished from the alleged newly discovered evidence, can afford plaintiffs no standing ground.
On the question of newly discovered evidence, it is insistently urged by the appellees that such alleged newly discovered evidence does not constitute a proper ground for vacating a judgment by equitable decree after the expiration of one year. On the other hand, it is contended by the appellants that they may, by bill in equity, after the expiration of one year, obtain the vacation of a judgment, upon any of the grounds enumerated in Section 12787, Code of 1924.
We have uniformly said, usually by way of argument, that a court of equity does have power upon equitable grounds to vacate a judgment after the expiration of one year. Ruppin v McLachlan, 122 Iowa 343, 98 N.W. 153; First Nat. Bank v. Murdough, 40 Iowa 26; Lumpkin v. Snook, 63 Iowa 515, 19 N.W. 333; Graves v. Graves, 132 Iowa 199, 109 N.W. 707; Heim v. Resell, 153 Iowa 356, 133 N.W. 881. We have also said that a court of equity, in the exercise of its power, is governed by the provisions of Code Section 12787 as it existed in prior codifications. What is the nature or form of the equity, as distinguished from statutory right, which will justify a court of equity in exerting its power, is a question which has not been decided or...
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