Day v. Trigg.
Decision Date | 14 January 1922 |
Docket Number | No. 2656.,2656. |
Citation | 27 N.M. 655,204 P. 62 |
Parties | DAYv.TRIGG. |
Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
A judgment rendered after trial, with full opportunity for the parties to be heard, and with no extrinsic fraud, may not be attacked by a proceeding commenced to vacate it after it has become final, solely on the ground that it was obtained by false testimony.
Appeal from District Court, De Baca County; Bratton, Judge.
Application by W. S. Day against H. Trigg in the district court for a writ of audita querela to vacate a judgment in favor of the latter and against the former. A demurrer to the petition was sustained, the proceeding dismissed, and petitioner appeals. Affirmed.
A judgment rendered after trial, with full opportunity for the parties to be heard, and with no extrinsic fraud, may not be attacked by a proceeding commenced to vacate it after it has become final, solely on the ground that it was obtained by false testimony.
Ed S. Gibbany, of Roswell, for appellant.
T. E. Mears, of Portales, for appellee.
In June, 1919, appellee, H. Trigg, recovered judgment for $1,000 and costs against appellant, W. S. Day, in the district court of De Baca county. The recovery was based upon a claim for cottonseed cake furnished for appellant's cattle and for services in feeding it. On June 26, 1921, two years after the entry of judgment, appellant applied to the district court for a writ of audita querela to vacate it. A demurrer to his petition was sustained and the proceeding dismissed, and he thereupon took this appeal.
As grounds for his petition for the writ appellant alleged that the judgment was obtained by false testimony on the part of appellee and Fred Riley, his employee. The specific charges are set out in his complaint as follows:
“That upon the trial of said action the said H. Trigg testified that all of the cotton seed cake which he fed to the cattle of the plaintiff was shipped from the town of Ft. Sumner, in said county and state, by him, the said H. Trigg, to the town of Buchanan, in said county and state, where the adjoining ranches of the said parties to said judgment are situated, and that he had lost his bills of lading for such shipments; that upon said trial the said H. Trigg only produced receipts or bills for five or six tons of cotton seed cake which he had purchased at Ft. Sumner and shipped to Buchanan, from the mercantile house of Earickson & Co. at Ft. Sumner; that he testified that he had shipped many other shipments of tons of cake, which, together with the services of his hand, Fred Riley, would amount to more than $2,000, all of which was false and untrue, except as to the said cotton seed cake purchased and shipped from the mercantile establishment of Earickson & Co.; that complainant had no knowledge of the truth or falsity of the shipments claimed to be made by the said H. Trigg, and no way on the trial to prove the said statements were false; that the said H. Trigg falsely, willfully, and with intent to defraud and deceive this said court and to oppress complainant so advised and suborned the said Fred Riley, who had no definite means of knowing the amount of cake which was shipped to Buchanan by the said Trigg, and by the said Fred Riley fed to Trigg's and the complainant's cattle, so that the said Fred Riley believed him and testified in corroboration of the amount of said shipments as fed by him, believing such testimony was true.”
Summarizing these allegations, the charge is that appellee swore falsely as to the amount of cotton seed cake he furnished appellant and induced Riley to swear falsely as to the amount he fed, although Riley believed his testimony true when given--an apparent inconsistency, since Riley necessarily testified from personal knowledge as to his own actions.
The demurrer was upon the ground that the complaint did not state a cause of action and, specifically, that it showed upon its face that the false swearing was upon an issue raised on the trial, was an intrinsic matter involved on the trial, and that the matters complained of were adjudicated in the original cause and determined against appellant. The facts relied upon as the basis for this demurrer do affirmatively appear on the face of the complaint, and it may be further stated that on the trial of the original action both appellant and appellee were present and introduced evidence in support of their contentions.
In Turknett v. Western College, 19 N. M. 572, 145 Pac. 138, this court declined to hold that the writ of audita querela was not available in this jurisdiction. But, assuming that it is, the class of cases falling within its scope has not been extended either by statute or decision. The writ usually issued only on the ground of some matter of defense or discharge arising subsequent to the rendition of the judgment complained of.
The parties, however, have treated the case as though it were a bill of review or other proper method for securing relief against a judgment obtained by fraud, and we will therefore consider it in the same way.
The question for decision upon the merits is as to whether a judgment which has become final may be vacated through an independent proceeding in the nature of a bill of review, solely upon the ground that it was obtained by false testimony.
There is no allegation that through any act of appellee appellant was defrauded or deceived or that by concealment or otherwise he was prevented from making his defense, except as the perjury itself may constitute deceit. While it is alleged that the judgment was obtained as the result of the false testimony, there is no statement that it was the only evidence upon the disputed point. It is alleged that appellant had no knowledge “of the truth or falsity” of this testimony at the time of trial, but there is no allegation that by the exercise of reasonable diligence he might not have obtained it. And in this connection it may be observed that from the facts as stated, though not pleaded in detail, it appears that the cake was fed to appellant's own cattle and was shipped by railroad from Ft. Sumner to Buchanan. The case was tried at Ft. Sumner, and the railroad records were presumably available there to show the actual shipments. The amount of cake actually shipped and fed was the vital issue contested in the case, and it would seem that appellant might well have prepared himself upon this point in advance of trial or during its course. In the absence of any showing that he was prevented from doing so by some act or deceit of appellee, or any allegation of facts showing diligence on his part, we are not able to say that the decision of the trial court did not result from his own negligence in preparation. There was no fiduciary relation between the parties, and no obligation upon appellee to disclose the facts upon which his action was based, nor could appellant rely upon him to furnish facts for his defense, except to the extent that he could assume that every witness, even an adversary party, will testify truly when he takes the stand. Nor is this court advised as to when appellant discovered the falsity of the testimony--information which likewise might be of value in considering his diligence. We have before us, therefore, the narrow question as to whether a judgment may be set aside for perjury committed on the trial, upon a proceeding instituted some two years later, and the situation is not complicated by various features which have furnished strong equitable considerations for vacating a judgment in other cases decided by other courts.
In determining this case we are met with two conflicting principles, both of which cannot be given full effect. Any intentional false swearing shocks the conscience. The primary purpose of every legal proceeding is to ascertain the rights of the parties and to do justice between them. If a court's decision is induced by perjured testimony, there is a miscarriage of justice, judicial machinery has to that extent failed to accomplish the purpose for which it was created, and the first impulse is to seek a way to relieve the defeated party from the loss sustained through the wrongdoing of his opponent.
On the other hand, there is the ancient and fundamental principle that there must be some end to litigation. An issue once fully...
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