Fair v. Tampa Elec. Co.
| Citation | 27 So.2d 514,158 Fla. 15 |
| Parties | FAIR et al. v. TAMPA ELECTRIC CO. |
| Decision Date | 08 October 1946 |
| Court | United States State Supreme Court of Florida |
Rehearing Denied Oct. 29, 1946.
Appeal from Circuit Court, Hillsborough County; L. L. Parks judge.
Raleigh T. Barber and R. G. Tittsworth, both of Tampa, for appellants.
Sam Bucklew, of Tampa, for appellee.
Suit was brought by appellants to recover damages alleged to have been sustained because of the negligent operation of appellee's street car. The jury returned a verdict in favor of appellants, and final judgment was entered on October 28, 1941.
Three days after entry of the judgment a motion for new trial was filed, and on November 7, 1941, it was denied. Three weeks later (on November 28) the appellee filed a motion to set aside the verdict and judgment and grant a new trial, representing that it had learned since the entry of the order denying the motion for new trial that a witness for appellants, who had testified he was on the street car at the time of the mishap and purported to relate what had occurred, was not there at all and that his entire story was a fabrication. It was charged that the witness had repudiated his testimony and that the judgment therefore had been procured through fraud. Appellants moved to strike this motion, and evidently the term of court expired without a ruling on either motion. On July 13 of the following year appellee was permitted to withdraw the motion of November 28 'without prejudice to its right to file and other motion in said cause, as it may be advised.' The same day it presented a 'motion for stay of execution and vacation of judgment.' This motion set up the matter of the alleged fabricated testimony, and in addition charged that the testimony was given at the instance of appellants' attorney, Raleigh T. Barber. It was prayed that, a fraud having been perpetrated on the court and on appellee, no execution issue to enforce the judgment. The circuit judge, Honorable L. L. Parks determined from witnesses he heard that the false testimony in the original trial was given under the direction of the attorney named, who knew when it was introduced that it was perjured, and the judge decided that this manufactured testimony was material and influenced the verdict. He therefore ordered the execution stayed and the 'cause * * * remanded to the trial docket.' He also decided that the last motion was a substitute, filed after expiration of the fall (1941) term by permission of the court, for the motion of November 28, 1941, filed during that term, and that the latter 'carried forward into the Spring Term of 1942 jurisdiction to hear and determine' the motion last made and disposed of by the order now being reviewed.
Appellants have presented six questions, but we are inclined to agree with appellee that but two points need consideration: the existence of jurisdiction in the court and the sufficiency of the fraud to justify the order.
That rank fraud was perpetrated upon the adversary of the appellants and upon the court was definitely established by the testimony taken before the circuit judge, and it is no sufficient refutation to say that the case of the appellants was amply proved by other witnesses wherefore the perjurer's testimony was merely cumulative and the judgment should not have been disturbed. Certainly the appellants relied upon this testimony and vouched for the witness when they introduced him in their behalf, and it is perfectly clear that his story, coming as it did from the only witness describing himself as a passenger on the bus seated at a vantage point near the entrance to the vehicle at the time of the mishap was very material to the issues in the case.
The appellants have cited to us decisions giving the distinction between extrinsic and intrinsic fraud, basing their argument with reference to this phase of the case on the proposition that the court having lost jurisdiction at the time the order under review was entered, fraud only of the former character could support a successful assault on the judgment. They insist that the fraud, if any, committed by the witness and by their counsel was intrinsic, hence could not have justified the court in staying the execution. Our attention has been drawn by them to the opinion of this court in Alabama Hotel Company v. J. L. Mott Iron Works, 86 Fla. 608, 98 So. 825, holding that a court loses control of its orders when the term at which they are rendered expires. Kroier v. Kroier, 95 Fla. 865, 116 So. 753. Reference in the appellants' brief is then made to the decision of the United States Circuit Court of Appeals of the Ninth Circuit, Nelson v. Meehan, 155 F. 1, 12 L.R.A.,N.S., 374, where it was held that a court of equity would not, on account of fraud, annul a judgment after the end of the term unless the fraud relied upon was extrinsic or collateral as distinguished from intrinsic, giving as authority the decision of the Supreme Court of the United States in United States v. Throckmorton, 98 U.S. 61, 25 L.Ed. 93. This rule seems to have been followed in numerous other decisions such as Pico v. Cohn, 91 Cal. 129, 25 P. 970, 27 P. 537, 13 L.R.A. 336, 25 Am.St.Rep. 159.
In the decisions which we have studied it is held that perjury (Vance v. Burbank, 101 U.S. 514, 25 L.Ed. 929; Pico v. Cohn, supra) or even subornation of perjury (Maryland Steel Company v. Marney, 91 Md. 360, 46 A. 1077) does not constitute extrinsic fraud. Illustrations of fraud of this character are given in the opinion in United States v. Throckmorton, supra, as prevention of an unsuccessful party from presenting his case, by fraud or deception practiced by his adversary; keeping the opponent away from court; falsely promising a compromise; ignorance of the adversary about the existence of the suit or the acts of the plaintiff; fraudulent representation of a party without his consent and connivance in his defeat; and so on.
From the authorities we have consulted we are convinced that it is a universal rule that...
To continue reading
Request your trial
-
Brown v. Brown
...fraud was extrinsic. Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. at 261 n. 18, 64 S.Ct. at 1009 n. 18; Fair v. Tampa Electric Co., 158 Fla. 15, 27 So.2d 514 (1946). Thus, equitable relief was historically available "on the ground that, by some fraud practiced directly upon the pa......
-
Hanono v. Murphy
...DCA 1974)("One who engages in a fraudulent scheme forfeits all right to the prosecution of a lawsuit."); see also Fair v. Tampa Elec. Co., 158 Fla. 15, 27 So.2d 514 (1946); Fagan v. Powell, 237 So.2d at 579. We can think of no situation which more clearly justifies and requires this result.......
-
Parker v. Parker
...plaintiff; fraudulent representation of a party without his consent and connivance in his defeat; and so on. Fair v. Tampa Electric Co., 158 Fla. 15, 18, 27 So.2d 514, 515 (1946). See Black's Law Dictionary 595 (rev. 5th ed.1979). In other words, extrinsic fraud occurs where a defendant has......
-
Leo's Gulf Liquors v. Lakhani
...1992); Horjales v. Loeb, 291 So.2d 92, 93 (Fla. 3d DCA 1974); Fagan v. Powell, 237 So.2d 579 (Fla. 3d DCA 1970); Fair v. Tampa Elec. Co., 158 Fla. 15, 27 So.2d 514, 516 (1946)). We conclude that the trial judge's thoughtful and complete analysis of the facts presented in support of defendan......