Bryan v. Bryan

• Decision Date: 26 September 1952
• Docket Number: No. 3275.,3275.
• Court: U.S. District Court — District of South Carolina
• Parties: BRYAN v. BRYAN et al.

109 F. Supp. 366

BRYAN v. BRYAN et al.

No. 3275.

United States District Court E. D. South Carolina, Florence Division.

September 26, 1952.

Shuler & Harrell, Kingstree, S. C., Henry E. Davis, Florence, S. C., for plaintiff.

Connor & Connor, Kingstree, S. C., Willcox, Hardee, Houck & Palmer, Florence, S. C., for defendants.

WILLIAMS, District Judge.

This is an action in equity to set aside a judgment at law on the ground that it was obtained through fraud, and that the enforcement thereof would be in violation of the First Section of the Fourteenth Amendment of the United States Constitution.

In November, 1948, the defendants, Elizabeth J. Bryan, Harry O. Lifrage and Vivian B. Lifrage obtained a judgment against the plaintiff, J. G. Bryan, in the sum of $3,000 actual damages, and $2,000 punitive damages. The complaint alleged malicious interference with an easement to certain roads connecting plaintiffs' property with the main highway.

The plaintiff, J. G. Bryan (the defendant in the original action), made a motion for a new trial, which was denied. He then appealed to the Supreme Court of South Carolina and the verdict of the jury and judgment entered thereon was affirmed by opinion filed September 16, 1950. Bryan v. Bryan, 217 S.C. 555, 61 S.E.2d 177.

The defendant, J. G. Bryan, then brought an action by complaint dated October 16, 1950, in which he was a plaintiff against the defendants herein and the Sheriff of Williamsburg County. In this action the plaintiff alleged that the verdict in the original suit was obtained by perjured testimony and asked the court to set aside and vacate the judgment entered thereon. The defendants demurred to the complaint on the ground that it did not state sufficient facts to constitute a cause of action. This demurrer was overruled by order of the Circuit Judge dated December 28, 1950. Thereafter, appeal was taken to the Supreme Court of South Carolina, which reversed the order of the Circuit Court, sustained the demurrer and dismissed the complaint. Bryan v. Bryan, 220 S.C. 164, 66 S.E.2d 609.

On October 1, 1951, the plaintiff, J. G. Bryan, petitioned the Supreme Court for leave to move for a new trial upon after-discovered evidence under South Carolina Supreme Court Rule No. 24. The Supreme Court by order dated October 12, 1951, denied this petition.

The defendant in the original action, J. G. Bryan, thereafter brought the second collateral action against the same parties, in which he alleged that the denial of the State Court to grant him relief deprived him of his property without due process of law, in violation of the First Section of the Fourteenth Amendment of the United States Constitution. The defendants again demurred to this complaint and by order of the State Circuit Court dated June 14, 1952, this demurrer was sustained and the complaint was dismissed. From this order of the Circuit Judge, notice of intention to appeal was given. This appeal was dismissed by order of the Circuit Court on August 28, 1952.

The complaint in this present action sets forth, among other things, that the Circuit Court, in affirming the same in the original appeal, based the decision on testimony which was known by the defendants herein to be false, perjured, fabricated and fraudulent in certain particulars; that said judgment so obtained by fraud and perjury would result in taking the property of plaintiff without due process of law, in violation of Section 1 of the Fourteenth Amendment of the Constitution of the United States.

The defendants have filed a motion to dismiss this action under provision of Rule No. 12 of Federal Rules of Civil Procedure, 28 U.S.C., on several grounds. The matter was heard before me at Chambers in Florence, South Carolina, on September 2, 1952. All records and procedures in the State Courts were submitted to me.

Only three questions are raised which need be considered:

1. Can the Federal Court set aside a judgment obtained in a State Court in a collateral action on the ground that it was obtained by intrinsic frauds?

2. Has the plaintiff been denied due process of law under the First Section of the Fourteenth Amendment of the Constitution of the United States?

3. Does the res adjudicata rule apply in this case?

The first question was considered by the Supreme Court of South Carolina in the first collateral case, Bryan v. Bryan, 220 S.C. 164, 66 S.E.2d 609.

In this case, the court fully discussed the right of a court of equity to grant relief from the judgment on the ground that it was obtained by perjured testimony, and clearly decided that the perjured testimony was a species of intrinsic fraud and that no relief could be granted on this ground; that only the existence of extrinsic fraud was a proper ground for relief. The court rests its opinion primarily on the case of United States v. Throckmorton, 98 U.S. 61, 25 L.Ed. 93. In this case it was held that perjured evidence is a species of intrinsic and not extrinsic fraud and that an action in equity will not lie to set aside a judgment merely because it was obtained by perjured testimony.

The Circuit Court of the Fourth Circuit, in the case of Aetna Casualty & Surety Company v. Abbott, 130 F.2d 40, 43, had practically the same question for consideration as we have in this case. In the Abbott case it appears that judgment was obtained by Abbott against the Takoma Park Bank in the Maryland Courts. The District Court of the United States was asked to set aside, on account of alleged fraud in the procurement thereof, this judgment of the Maryland Court. It was contended that Abbott had obtained judgment for the Bank's loss of 50 Gold Certificates of the United States from his deposit box; that the alleged loss and disappearance thereof was fraudulent, without foundation in fact, and the result of a conspiracy between Abbott and certain witnesses who testified in his behalf to defraud the Bank and its surety. In disposing of this contention, the Circuit Court said:

"* * * It is nothing more than a general charge of fraud and conspiracy between plaintiff and his witnesses, without specification of any circumstances constituting fraud, and without the averment of any fact showing or tending to show that there was extrinsic fraud in the procurement of the judgment which would justify the court in disregarding it. Even if the language be construed as charging that the judgment sued on was procured by means of perjured testimony, this would not be sufficient; for it is well settled that this constitutes no ground upon which the court could disregard the judgment or deny its enforcement in an independent proceeding. The frauds which justify such action in an independent proceeding between the same parties or their privies are those which are extrinsic or collateral to the matter tried, and not frauds, such as perjured evidence, which were `actually presented and considered in the judgment assailed.'"

In United States v. Throckmorton, 98 U.S. 61, 25 L.Ed. 93, an excellent definition is given of extrinsic, as distinguished from intrinsic fraud, which may be used as the basis of setting aside a judgment. This statement reads as follows:

"* * * Where the unsuccessful party has been prevented from exhibiting fully his case, by fraud or deception practiced on him by his opponent, as by keeping him away from court, a false promise of a compromise; or where the defendant never had knowledge of the suit, being kept in ignorance by the acts of the plaintiff; or where an attorney fraudulently or without authority assumes to represent a party and connives at his defeat; or where the 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 set aside and annul the former judgment or decree, and open the case for a new and fair hearing."

This case also gives a sound reason for the rule that intrinsic fraud may not be used as a basis for setting aside a final judgment, which has been duly entered, as follows:

"* * * `The maxim that fraud vitiates every proceeding must be taken, like other general maxims, to apply to cases where proof of fraud is admissible. But where the same matter has been actually tried, or so in issue that it might have been tried, it is not again admissible; the party is estopped to set up such fraud, because the judgment is the highest evidence, and cannot be contradicted.' * * * We think these decisions establish the doctrine on which we decide the present case; namely, that the acts for which a court of equity will on account of fraud set aside or annul a judgment or decree, between the same parties, rendered by a court of competent jurisdiction, have relation to frauds, extrinsic or collateral, to the matter tried by the first court, and not to a fraud in the matter on which the decree was rendered.

"That the mischief of retrying every case in which the judgment or decree rendered on false testimony, given by perjured witnesses, or on contracts or documents whose genuineness or validity was in issue, and which are afterwards ascertained to be forged or fraudulent, would be greater, by reason of the endless nature of the strife, than any compensation arising from justice in individual cases."

I think it is important to add at this point only two additional quotations from cases in State Courts that appear in the note to Publicker Industries v. Shallcross, 3 Cir., 106 F.2d 949, 126 A.L.R. 386, said notes appearing at pages 393 and 394, as follows:

"`Endless litigation, in which nothing was ever finally determined, would be worse than occasional miscarriages of justice; and so the rule is that a final judgment cannot be annulled merely because it can be shown to have been based on perjured testimony; for if this could be done once, it could be done again and again, ad infinitum.'"

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