Cotzhausen v. Kerting

• Decision Date: 26 December 1886
• Citation: 29 F. 821
• Parties: COTZHAUSEN v. KERTING.
• Court: U.S. District Court — Eastern District of Wisconsin

29 F. 821

COTZHAUSEN v. KERTING.

United States Circuit Court, E.D. Wisconsin.

December 26, 1886

H. C Sloan, for complainant.

G. W Hazelton, for defendant.

DYER J.

The defendant in this bill recovered a judgment against the complainant in the circuit court of the United States for the Northern district of Illinois in an action of trespass. The suit in which the judgment was rendered grew out of the foreclosure by the complainant, Cotzhausen, of certain chattel mortgages which he held upon property in the possession of the defendant; and the complainant was adjudged a trespasser in enforcing a foreclosure as to certain articles of property which it was claimed by the plaintiff in that suit were not covered by the mortgages. Suit at law being brought upon the judgment in this court, the complainant files the present bill, on the equity side of the court, to enjoin the prosecution of the action, on the ground that the judgment was obtained by fraud. The bill is demurred to for want of equity, and the question is, does the bill present a case entitling the complainant to the relief prayed for? I am of the opinion that it does not, and a brief reference to the averments of the bill will, I think, make it quite apparent that no other conclusion can be reached, consistently with principles of equity practice.

The bill begins by alleging that the judgment referred to was procured by fraud and perjury on the part of Kerting 'and certain other parties conspiring and combining with him for that purpose. ' A general allegation of fraud, such as this, is insufficient. As a matter of pleading, it is indispensable that the fraud, and the acts of the parties which it is claimed constitute the fraud, be specifically and distinctly pointed out, that the court may see whether grounds for the relief invoked, exist or not. However, the demurrer being a general one, on the ground of want of equity, the question is not whether particular allegations are in and of themselves sufficient, but whether, upon the whole bill, a case is made for relief in equity. In recognition of the principle in equity pleading just stated, the bill proceeds to state the particulars of the alleged fraud as follows:

'And in that behalf your orator avers and alleges that, on or about the twenty-fifth day of September, A.D. 1880, at the city of Chicago, he caused to be foreclosed two certain chattel mortgages given by the American Oleograph Company, covering a large stock of mortgaged chattels, several thousand in number, used and employed in carrying on a lithographing and engraving business, under the name of the Chicago Lithographing Company; that, for a long time theretofore, said Kerting had been in the possession, control, and management of said business and property, using and operating the same as if they were his own; that on the foreclosure it was ascertained that a number of the mortgaged chattels were removed from the premises, and missing, among which were lithographing stones and other articles of great value; that on the sale there remained a deficiency of $5,147.58, which still remains unpaid; that, when ousted by said sale, strenuous efforts were made by said Frank Kerting, extending over a number of years, in a variety of legal proceedings instituted against your orator, his law partner, and his local attorney and agent, who conducted said foreclosure sale, to set aside and invalidate the same, and thus to recover possession of said business and property, but that all of said proceedings proved fruitless and unavailable; that, having failed in his efforts in this direction, said Frank Kerting filed, in February, 1884, his praecipe for a summons in the superior court of Cook county, State of Illinois, against your orator, who had become the purchaser of the mortgaged property at the foreclosure sale, and in said suit thus instituted, being the same referred to in the original cause herein, he charged in his complaint, trespass vi et armis, your orator with having unlawfully taken and carried away, on the twenty-fifth day of September, 1880, a large amount of personal property said to belong to him individually, among which were some forty or fifty lithographing stones, and color-grinder, and varnish-machine, and paper-cutter, and desk, counter, and chairs, a lot of electrotypes, pictures, chromos, some work in process of being finished, and other small chattels.'

Thus far nothing is stated except introductory matter, showing the origin and character of the controversy between the parties. The bill then proceeds further to allege-- 'That said suit was subsequently removed to the United States circuit court for the Northern district of Illinois, and, being at issue in said court, and coming on to be tried before a jury, in that behalf duly taken and sworn between the parties, and upon the trial of said issue, the said Frank Kerting did then appear and tender himself, and was received to give evidence on behalf of himself, and did then take his corporal oath, and was duly sworn; and then, and upon the trial of said issue, it became and was a material question in the same whether, after the foreclosure sale, the said Kerting made a demand upon this defendant for any of the property which he thus individually claimed outside of the mortgaged chattels, and whether he fairly disclosed to your orator his claim of title thereto; and thereupon the said Kerting, having been so sworn as aforesaid, devising and wickedly intending to cause and procure a verdict to pass for him, did then and there falsely, willfully, and corruptly depose, and give evidence in substance and to the effect, that he made demand for said property because not embraced in said mortgaged, and was refused possession thereof; and whereas, in truth and in fact, he never made any such demand, or in any other manner laid claim to any of the property above referred to, nor ever disclosed his right to any portion thereof, except by contesting and impeaching the foreclosure sale generally.'

If the question whether the plaintiff in the Illinois suit claimed and demanded the property in question before suit brought was a material one on the trial of the case, then it simply constituted one of the facts in issue concerning which the parties could themselves testify, and upon which they could adduce such other evidence as they may have had at hand bearing upon it. The whole gist of the allegation is that Kerting swore falsely that he made a demand for the property. That is all there is of it. In other words, it would seem that he testified on the trial that he made a demand. It is alleged that in so testifying he committed perjury. It must be assumed that the complainant, if the question was a material one, met it with testimony on his part. At least, it was his duty to...