City of Guthrle v. McKennon

Citation19 Okla. 306,1907 OK 104,91 P. 851
PartiesCITY OF GUTHRLE v. CHANDLER MCKENNON, Administrator of the Estate of FRANCIS R. MCKENNON, Deceased.
Decision Date05 September 1907
CourtSupreme Court of Oklahoma
Syllabus

¶0 1. JUDGMENT--Fraud--Vacation--Time for Application. A judgement of a court of record, obtained and procured to be entered by reason of the fraud and deceit of the party benefited thereby, is voidable at the suit of the judgment debtor, which suit may be maintained under the provisions of section 18 of the Code (Wilson's Rev. & Ann. Stat. 1903, sec. 4216), within two years after the date of the discovery of the fraud.

2. SAME. The provisions of sections 562 and 569 of the Code, which limits the time in which a procedure thereunder may be Instituted to reverse, vacate, or modify a judgment to two years from the date of the judgment, does not apply so as to estop the bringing of an equitable action to cancel a judgment on the ground of fraud within two years from the date of the discovery of such fraud.

3. SAME--Pleading--Defective Petition. In an action to set aside a judgment on the ground of fraud practiced in procuring the same, where the petition alleges and shows that judgment has been obtained upon a chose in action which the party obtaining such judgment did not at the time own, but that the same was owned and had been reduced to judgment by a third party, and where by such petition it is shown that the petition upon which the alleged fraudulent judgment was entered set out that such third party claimed some interest in the chose in action with reference to which the plaintiff was not fully advised, and prayed an order that such third party be impleaded and brought in, that the right of all the parties might be fully adjudicated, which petition was verified, such verification reciting the fact that the plaintiff was the owner of the chose, except such interest as such third party might have therein, Held, that such petition does not state cause of action, because it appears therefrom that the plaintiff had notice of such facts and circumstances as would put a person of ordinary prudence upon inquiry, which inquiry would have disclosed the defense, if any, the defendant in such action might have.

Error from the District Court of Logan County; before Jno. H. Burford, Trial Judge.

Affirmed.

James Hepburn, City Att'y, and Lawrence & Huston, for plaintiff in error.

J. C. Strang and Devereux & Hildreth, for defendant in error.

GILLETTE, J.:

¶1 This action was commenced October 30, 1903, in the district court of Logan county, by filing in said court a petition setting forth facts which were relied on to support a judgment vacating and holding for naught another judgment of said court in favor of the defendant and against the plaintiff, city of Guthrie, which judgment so sought to be vacated was entered upon an agreed statement of facts, November 20, 1900, in the sum of $ 4,234.86. A demurrer was filed to the petition and sustained by the court February 16, 1904. Four days later, on February 20, 1904, an amended petition was filed, against which another demurrer was lodged and sustained February 13, 1905. The case comes to this court, praying judgment reversing the order of the lower court sustaining such demurrer.

¶2 It appears from the petition filed that the judgment complained of was based upon certain items of indebtedness of the city, which were allowed, and warrants issued to John E. Ford by a commission appointed and acting under and by force of an act of the legislature of December 5, 1890, entitled, "An act for the purpose of providing for the allowance and payment of the indebtedness heretofore created by the people of the cities of Guthrie, East Guthrie, West Guthrie and Capitol Hill, and now consolidated into the city of Guthrie" (St. 1890, § 553), which items of indebtedness are numbered and described, and are shown by the petition to have been the items of indebtedness considered by the court in the rendition of the judgment now complained of; it being alleged that John E. Ford during the lifetime of Francis R. McKennon sold said items to said McKennon, who afterwards died, and whose estate, at the suit of T. F. McKennon, administrator, recovered judgment for and on account of. The petition shows that on November 29, 1899, the Guthrie National Bank, in an action brought against the city of Guthrie, recovered judgment against the city of Guthrie upon the same items of debt that McKennon, as administrator, sued for and recovered upon November 20, 1900, a year subsequent to the judgment in favor of the bank for the same. The petition alleges: That the McKennon judgment was and is fraudulent and was fraudulently obtained, for that T. F. McKennon, at the time of bringing such suit as administrator, knew that the estate of Francis McKennon did not own such items of indebtedness. That Adelbert Hughes, city attorney of the city of Guthrie, confessed judgment against the city in favor of T. F. McKennon, administrator, relying upon the sworn statement of T. F. McKennon in the verification of plaintiff's petition and his verbal statement to the effect that Francis R. McKennon, deceased, was at the time of his death the owner and holder of such items of indebtedness, when in fact he was not so the owner of such items; but, believing the same to be true because of such representations, he entered into a written stipulation upon the filing of which the judgment complained of was entered, which, among other things, contains a stipulation as follows: "It is further stipulated that plaintiff herein is the owner and holder of the claims mentioned, set out and sued upon in this action." That when the said T. F. McKennon brought such suit against the city of Guthrie the mayor and members of the city council and the city attorney of the city of Guthrie were deceived by the sworn statement and allegations of said T. F. McKennon, in his said action against plaintiff, and by his oral and positive statements made to Adelbert Hughes, city attorney, and to others during the pendency of said action in court; and they relied upon and believed the allegations in said petition contained, and the oral allegations of said T. F. McKennon, and had no reasonable cause or ground to believe otherwise until long after judgment had been entered upon said items in favor of said T. F. McKennon as aforesaid. The petition of T. F. McKennon set out and stated as follows: "Plaintiff avers that the Guthrie National Bank claims some interest in a portion of said claims, the exact nature of which the plaintiff is not able to state." And in the prayer for judgment it asks that the Guthrie National Bank might be impleaded and required to set up any claim it had upon the items of indebtedness sued upon. The verification of the petition by T. F. McKennon contained the following: "That he is the bona fide owner and holder of the claims described in the foregoing application and motion to the best of his knowledge and belief, except such interest, if any, as the Guthrie National Bank may have or hold in a portion of the said claims." The judgment complained of, and sought to be set aside, was entered upon the agreed facts, without making the Guthrie National Bank a party or requiring it to come in and set up its interest in said claims. That at the time the judgment was rendered in favor of T. F. McKennon a stipulation was entered into by counsel for said McKennon and the city attorney for said city which in terms set forth that said action was subject to appeal to the supreme court, but that it was to be held and considered by the parties as a pending action in the district court until a cause pending in the supreme court wherein the city of Guthrie was plaintiff in error and one F. B. Lillie was defendant in error should be by the supreme court determined, and, when so determined, the determination of the supreme court should be entered in this case in all respects as though the same had been appealed to the supreme court; that is to say, if the Lillie case was affirmed by the supreme court, such affirmation should be entered and considered as an affirmation by the supreme court of the pending case, and a reversal would likewise operate as a reversal of the said action. The record shows that the case of the City of Guthrie v. Lillie was finally disposed of in the supreme court, June 10, 1902, without judgment upon the merits of the appeal. The petition averred that the plaintiff was without adequate remedy, except in equity, and prayed for judgment vacating the McKennon judgment, and for an order staying and enjoining its enforcement by the said defendant McKennon.

¶3 Two questions are now presented for the consideration of this court: First, was this action at the time of its commencement barred by the statute of limitations? and, second, does the petition state facts sufficient to constitute a...

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