Brake v. Payne

• Decision Date: 18 April 1894
• Docket Number: 16,667
• Parties: Brake et al. v. Payne
• Court: Indiana Supreme Court

37 N.E. 140

137 Ind. 479

Brake et al. v. Payne

No. 16,667

Supreme Court of Indiana

April 18, 1894

From the Clay Circuit Court.

The judgment is affirmed.

I. N Pierce and J. T. Crandell, for appellants.

S. C Stimson, R. B. Stimson, A. M. Higgins and H. A. Condit, for appellee.

OPINION

Dailey, J.

This was an action by the appellee against the appellants to enjoin an execution and judgment for fraud in the procurement of the judgment.

Seven errors were assigned, all of which present but one and the same question, namely: Does the complaint state facts sufficient to constitute a cause of action?

The complaint is in two paragraphs; but the demurrer is addressed to the entire complaint, and is a joint demurrer. Hanover School Township v. Gant, 125 Ind. 557, 25 N.E 872.

The demurrer is not well taken if either paragraph is good. Redelsheimer v. Miller, 107 Ind. 485, 8 N.E. 447.

Against the sufficiency of the complaint, the appellants advance two general propositions: that the complaint is a collateral attack upon a judgment; and, that it shows such delay in bringing the action as worked an equitable estoppel.

Pertinent to the first of these objections, the first paragraph states the following facts: Brake brought ejectment against Payne for land which Payne was not, and never had been, in possession of, but against which he held an equitable claim, which was a cloud upon Brake's title. While the action was pending, and before judgment, Brake, with the fraudulent design to procure a personal judgment against Payne, induced him not to make an appearance in the action, by representing to him that he did not desire nor intend to take a personal judgment, but only to quiet his title against Payne's equitable interest in the land, and by making an agreement with Payne that if Payne would not appear and set up his interest, but would permit Brake to quiet his title, Brake would not take a personal judgment against Payne. The latter, relying on these representations, and on this agreement, made default; whereupon Brake, in consummation of said fraudulent design, took a personal judgment against Payne for $ 50 and the costs.

The second paragraph states the same facts, but adds that pending said ejectment suit, and before judgment, Brake, in pursuance of said fraudulent design, made a compromise of the matters pending between them, by the terms of which Brake was to have a judgment quieting his title, without a personal judgment against Payne.

It is contended by the appellee that these facts clearly charge a case of fraud in the procurement of the judgment; and, therefore, that the action is not, in the strictest sense of the term, a collateral, but a direct, attack upon a judgment.

A judgment procured by a fraudulent compromise may be set aside in a collateral action. Spahr v. Hollingshead, 8 Blackf. 415; Moon v. Martin, 122 Ind. 211, 23 N.E. 668.

"A party to the record may have a judgment set aside for fraud in obtaining it, but not for fraud in the cause of action on which it is founded, because he should have pleaded the fraud to the cause of action before the judgment was rendered." State, ex rel., v. Holmes, Admr., 69 Ind. 577 (589) (590); Coon, Admr., v. Welborn, 83 Ind. 230.

"It is a well settled and familiar doctrine that in courts of equity a judgment may be enjoined for fraud in obtaining it, at the suit of the injured party." Hogg v. Link, 90 Ind. 346 (349).

Without any allegation of fraud in the obtaining of the jurisdiction, it is sufficiently settled that the procurement of the judgment by fraud, well pleaded, is an equitable defense. Duringer v. Moschino, 93 Ind. 495 (498); Harman v. Moore, 112 Ind. 221, 13 N.E. 718.

"Fraud in the procurement of the judgment is an extrinsic and collateral fact, and constitutes ground for a direct attack upon the judgment by a party thereto, by an application corresponding to an original bill in equity." Hogg v. Link, supra.

"The inherent, common law power of all courts to vacate or modify their judgments, * * in a direct proceeding for that purpose, is too firmly settled, both upon principle and authority, to justify further discussion." Nicholson v. Nicholson, 113 Ind. 131, 134, 15 N.E. 223; Black on Judgments, sections 368, 369, 370, 371 and 373.

A very similar case to the one at bar is thus stated by this court in Nealis, Admr., v. Dicks, 72 Ind. 374 (376): "That after Hamilton had begun the action in which the judgment was rendered, and after process served, the appellees compromised the claim which constituted Hamilton's cause of action; that Hamilton then agreed to dismiss his action; that appellees relied upon the agreement and gave the case no further attention; that judgment was rendered without their knowledge; that they did not know that judgment had been entered against them until the 30th day of October, 1877, and that they had performed their part of the agreement of compromise. It is also averred that the appellees had a meritorious defense to Hamilton's action. * * * "The complaint shows that Hamilton's judgment was obtained by fraud. The facts pleaded bring the case fully within the rule declared by the adjudged cases. The violation by Hamilton of the stipulation contained in the agreement of compromise was, of itself, such a fraud as entitled the appellees to relief. The cases are full and explicit upon this point; a judgment obtained in violation of an agreement of compromise, and by which an appearance is prevented, will not be allowed to stand."

The second objection to the sufficiency of the complaint is that it shows such delay in seeking relief that it should be denied.

The facts pertinent to this question, stated in the first paragraph of the complaint, are as follows: That the judgment in controversy was taken May 2, 1879. The fact of the judgment being taken was unknown to appellee until January 12, 1885, having been concealed by the fraudulent manner of its procurement, and the subsequent silence of appellant, Brake, who made no effort to collect the judgment until January 19, 1889, when he caused the issue of the execution in controversy. This action was commenced on the 11th day of February, 1889.

In addition to these facts, the second paragraph shows that the fact of the existence of such judgment was first disclosed to appellee in an action in the Vigo Superior Court, in which Josiah Locke was plaintiff and said Brake and Payne defendants; and in which Brake, on the 12th day of January 1885, filed a cross-complaint against Payne, setting up said judgment, and seeking to enforce it; to which cross-complaint Payne answered said fraud in procuring it; that the issue thus formed was continued after disposal of the principal action, and was never tried, but had been...