Brady v. Beams

• Decision Date: 11 February 1943
• Docket Number: No. 2608.,2608.
• Citation: 132 F.2d 985
• Parties: BRADY et al. v. BEAMS et al.
• Court: U.S. Court of Appeals — Tenth Circuit

132 F.2d 985 (1942)

BRADY et al. v. BEAMS et al.

No. 2608.

Circuit Court of Appeals, Tenth Circuit.

December 30, 1942.

Rehearing Denied February 11, 1943.

Chas. E. McPherren, of Oklahoma City, Okl. (Neal E. Maurer, of Oklahoma City, Okl., on the brief), for appellants.

Joseph C. Stone, of Muskogee, Okl., and W. T. Anglin, of Holdenville, Okl. (Alfred Stevenson, of Holdenville, Okl., Dick Jones, of Oklahoma City, Okl., E. W. Smith, of Henryetta, Okl., Charles A. Moon, of Muskogee, Okl., Francis Stewart, of Oklahoma City, Okl., Leon C. Phillips, of Okemah, Okl., D. A. Richardson, of Oklahoma City, Okl., L. O. Lytle and George Jennings, both of Sapulpa, Okl., Herbert G. House and Roscoe S. Cate, both of Muskogee, Okl., Harry B. Parris, of Eufaula, Okl., Wilbur J. Holleman and J. Garfield Buell, both of Tulsa, Okl., and Howell Parks, of Muskogee, Okl., on the brief), for appellees.

Before BRATTON, HUXMAN and MURRAH, Circuit Judges.

BRATTON, Circuit Judge.

This case is an epilogue to Scott v. Beams, 10 Cir., 122 F.2d 777, certiorari denied, 315 U.S. 809, 62 S.Ct. 795, 86 L.Ed. 1209, rehearing denied, 315 U.S. 830, 62 S.Ct. 912, 86 L.Ed. 1224. The parties here were parties there, asserting rival claims of heirship of Jackson Barnett, a wealthy Creek Indian, deceased. Having suffered an adverse judgment in the trial court, having failed to prevail in this court on appeal, and having met with defeat in their effort to obtain certiorari in the Supreme Court, Dora Brady and Lucinda Watashe instituted this action against Annie Beams and others to have the judgment in the former case vacated and set aside. A motion to dismiss the action was sustained on the grounds that the complaint was filed without leave of this court, and that all matters presented were adjudicated in the former case.

The parties contest sharply the question whether the proceeding is an independent action based on extrinsic fraud in connection with the procuring and rendition of the judgment in the former action or a bill of review, appellants contending that it is the former and appellees that it is the latter. Leave of this court to file the action was not obtained. A bill of review to obtain the vacation or modification of a final judgment may be maintained for error of law apparent on the face of the judgment and the pleadings and proceedings on which it is based, exclusive of evidence; for new matter which arose subsequent to the entry of the judgment; or for newly discovered evidence which in the exercise of reasonable diligence could not have been produced before the judgment was rendered. Hill v. Phelps, 8 Cir., 101 F. 650. But when a judgment has been affirmed on appeal and the mandate spread of record, a bill of review based on newly discovered evidence will not lie without leave of the appellate court to file; and therefore if the case be treated as a bill of review it was properly dismissed for want of such leave. Southard v. Russell, 16 How. 547, 14 L.Ed. 1052; In re Potts, Petitioner, 166 U.S. 263, 17 S.Ct. 520, 41 L.Ed. 994; National Brake Co. v. Christensen, 254 U.S. 425, 41 S.Ct. 154, 65 L.Ed. 341; Simmons Co. v. Grier Bros. Co., 258 U.S. 82, 42 S.Ct. 196, 66 L.Ed. 475; Continental Oil Co. v. Osage Oil & Refining Co., 10 Cir., 69 F.2d 19, certiorari denied, 287 U.S. 616, 53 S.Ct. 17, 77 L.Ed. 535; Simonds v. Norwich Union Indemnity Co., 8 Cir., 73 F.2d 412, certiorari denied, 294 U.S. 711, 55 S.Ct. 507, 79 L.Ed. 1246; Ex parte Thomas, 73 App.D.C. 50, 114 F.2d 847.

But it may be assumed without deciding that appellants are correct in their contention that the action is not a bill of review; that instead it is an independent action; and that therefore leave of this court to file it was not requisite. A United States court sitting in equity may vacate and set aside a judgment for fraud which was extrinsic or collateral to the matter tried but not for fraud which was in issue in the former suit. United States v. Throckmorton, 98 U.S. 61, 25 L.Ed. 93. The line of distinction between the two is sometimes indistinct and difficult to draw; dialectic niceties have sometimes been used in an effort to blueprint it; and tenuous differences have occasionally been sketched. Broadly stated, fraud practiced by a successful litigant which prevents his unsuccessful adversary from fully exhibiting his case, such as wrongfully preventing him or his material witnesses from attending the trial, inducing his attorney to professional delinquency or infidelity in connection with the case, or some other similar act, unmixed with fault or negligence on the part of the losing party, constitutes extrinsic or collateral fraud; and the introduction of perjured testimony or forged documents, or other cognate matter, which is actually considered in the judgment constitutes intrinsic fraud. United States v. Throckmorton, supra; Vance v. Burbank, 101 U.S. 514, 25 L.Ed. 929.

The gist of the cause of action here as made by the complaint is that during the trial of the former action the prevailing parties litigant, the assistant United States attorney, and the trial judge wrongfully entered into an understanding and agreement in which the issues were prejudged in favor of the prevailing parties — appellees here; and that such prejudgment was carried into effect by the entry of the judgment. The complaint is elaborate but that is the gist of the cause of action. It is pleaded that the attorneys for the three groups of claimants in the former action deemed it advisable to secure the approval of the Attorney General, the Secretary of the Interior, the Solicitor of the Department of the Interior, and the presiding judge to the contract of family settlement, then contemplated; that the attorneys induced the assistant United States attorney to confer with the judge; that the conference was held, and in the course of it the judge stated that in the event the contract was approved by the Attorney General and the Secretary of the Interior, and it was not against public policy, such orders would be entered as might be right and proper in carrying it into effect; that thereafter the assistant United States attorney wrote the Attorney General recommending that the contract be approved and stating that the judge had made such statements; and that after the entry of the judgment and after the appeal therefrom had been perfected, appellants and their attorneys first learned that such agreement had been entered into and the issues in the case thereby prejudged against them. But during the progress of the trial of the former action a petition was filed in it to construe the contract, and later an effort was made to disqualify the judge. The holding of the conference, and subsequent rulings, statements, and comments of the judge were relied upon for disqualification. The contract was introduced in evidence; correspondence relating to it was likewise introduced; and much testimony was taken. The assistant United States attorney testified at length in respect to the circumstances leading up to the execution of the contract, in...