Bullard v. Zimmerman
| Decision Date | 24 October 1930 |
| Docket Number | 6662. |
| Citation | 292 P. 730,88 Mont. 271 |
| Parties | BULLARD v. ZIMMERMAN et al. |
| Court | Montana Supreme Court |
Rehearing Denied Nov. 17, 1930.
Appeal from District Court, Wheatland County; Stanley E. Felt Judge.
Suit by Gilman Bullard against J. C. Zimmerman and another. From a judgment for plaintiff, defendants appeal.
Affirmed.
Ralph J. Anderson, of Lewistown, and Emmet O'Sullivan, of Harlowton, for appellants.
W. C Husband, of Harlowton, and C. A. Spaulding, of Helena, for respondent.
This is a suit in equity brought by plaintiff to vacate and annul a judgment recovered against him by defendant Zimmerman, in the district court of Wheatland county, upon the ground of extrinsic fraud.
The complaint alleges the commencement of an action by Zimmerman against plaintiff herein and numerous other persons, to recover from defendants therein for services alleged to have been rendered them and to foreclose a mechanic's lien upon property situated in Wheatland county, which will hereafter be referred to as cause numbered 1334; that service of summons was had on plaintiff and one C. F. Williams; that plaintiff herein appeared in that action by demurrer which was by the court overruled on October 15, 1924, and plaintiff given thirty days within which to answer; that previously defendant O'Sullivan had entered the default of Williams and as a result of an application the default was set aside by an order made on October 15, 1924; that O'Sullivan, as attorney for Zimmerman, represented to Jones & Jones, then plaintiff's attorneys, that he intended to take the matter of setting aside the default of defendant Williams to the Supreme Court, and stipulated and agreed that in the event the Supreme Court reversed the district court in that matter, he (O'Sullivan) would collect the claim due Zimmerman from Williams, and should the Supreme Court sustain the action of the lower court, the remaining defendants would be required to answer only after such ruling by the Supreme Court; that plaintiff herein would not be required to file an answer in the cause until such time as a decision was obtained from the Supreme Court on the ruling of the district court setting aside the default of Williams and until it had been final ly determined whether such default would be permitted to stand; and that plaintiff should have until such time to file an answer in that action, It is alleged that no decision of the Supreme Court has been had; that O'Sullivan made and filed in the district court a motion to vacate and set aside the order of October 15, 1924, which motion is still pending and undetermined. It is then alleged: "That said representation, stipulations and agreements of the said defendant Emmet O'Sullivan were false and known by him to be false and untrue, and were made with the purpose and in tent to persuade and induce the said Jones and Jones not to further appear or answer in said cause numbered 1334 for this plaintiff, and were made with the intent on the part of the defendant Emmet O'Sullivan that said Jones and Jones should believe the same and act thereon and thereby permit him, the said Emmet O'Sullivan, to thereafter take the default of this plaintiff in said cause numbered 1334 and prevent him from setting up in said cause a defense to the cause of action set forth in the complaint of the defendant Zimmerman; that William E. Jones believed the said representations, stipulations and agreements of the defendant Emmet O'Sullivan and, relying thereon, did not file an answer for this plaintiff in said cause numbered 1334 within the time fixed by said order of October 15, 1924." And thereafter, upon a præcipe filed by O'Sullivan, the default of plaintiff was entered on February 20, 1925; that no notice was given Jones & Jones that the stipulations and agreements theretofore made had been abandoned and repudiated or that O'Sullivan had decided to no longer adhere thereto or be bound thereby; that his motion to set aside the default was denied by the district court "upon the sole and only ground that such stipulations and agreements so made by the said Emmet O'Sullivan was not in writing and therefore not protected by the rules of said district court"; that thereafter judgment was entered against plaintiff herein for the amount sued for, together with costs and attorney's fees. Facts tending to show that plaintiff has a complete defense in cause numbered 1334 are set forth in detail. It is alleged that a transcript of the judgment was filed in Lewis and Clark county which constitutes a cloud upon real estate owned by plaintiff in that county.
The defendants answered, admitting the commencement of the action by Zimmerman, the appearance of plaintiff by demurrer, the entry of the orders of October 15, 1924, and that O'Sullivan had caused the default of defendant Williams to be entered on July 26, 1924; that application was made to set aside the default; and that on October 15 the default was set aside. It is alleged that Zimmerman made application to this court for a writ of supervisory control for the purpose of setting aside that order, which writ was denied by this court on October 24, 1924. The entry of plaintiff's default and subsequent entry of judgment against him are admitted. All other allegations of the complaint are denied.
The cause was tried before the court and judgment entered awarding plaintiff the relief prayed for. Defendants appeal from the judgment.
It is contended "that in order to obtain relief from a judgment in equity that in addition to the fraud being extrinsic, it must also be actual and intentional as distinguished from constructive fraud or fraud in law," and that at most the evidence shows only constructive fraud and the judgment cannot stand.
The power of a court of equity to grant relief from a judgment obtained by fraud is inherent; it does not depend upon statute. Hoppin v. Long, 74 Mont. 558, 241 P. 636. But, as stated by this court in Clark v. Clark, 64 Mont. 386, 210 P. 93, 94: The record discloses ample evidence to bring this case within the rule announced.
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