Freeman v. Wood
| Decision Date | 16 February 1905 |
| Citation | 103 N.W. 392,14 N.D. 95 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Grand Forks county; Kneeshaw, J.
Action by Louis Freeman and others against W. B. Wood. Judgment for defendant and plaintiffs appeal.
Affirmed.
Tracy R. Bangs and Guy C. H. Corliss, for appellants.
The fallacy of the court in its former decision in this action is in its failure to distinguish between the case at bar and the decision of this court in Kitzman v. Minnesota Thresher Mfg. Co., 10 N.D. 26, 84 N.W. 585. In the Kitzman case the ground for setting aside the judgment was extrinsic to the merits of the case. The plaintiffs in this case claim that the judgment they seek to set aside is fraudulent, not because they were induced to keep away from the court, but because there was a fraud in the very accounting itself working a deception on the court to induce it to render a decree which it would not otherwise have rendered.
Where there is actual litigation and parties try a controverted issue, each party must be on his guard against false swearing and false representations on the trial; where the fraud is not extrinsic, but is connected with the mere trial of the case, no redress in equity can be had as against the final judgment rendered. United States v. Throckmorton, 98 U.S. 61, 25 L.Ed. 93. But where there is no actual litigation in court and no contest between parties over a settled issue but the proceeding is merely an accounting by a trustee in a court of equity for the benefit of the beneficiaries, the law looks upon the relation of the parties as different from those engaged in an actual lawsuit. And for fraud in the accounting itself, to wit, in false swearing or presenting false vouchers or in making false entries in the account, the law will justify and compel a court of equity to set aside the judgment discharging such trustee and compel him to make an honest accounting of his trust. Ridenbaugh v Burnes, 14 F. 93; Anderson v. Anderson, 52 N.E 1038; Perry on Trusts, section 924; Griffith v Godley, 113 U.S. 89, 28 L.Ed. 934, 5 S.Ct. 385; Williams v. Herrick, 25 A. 1100; Pratt v Northam, 19 F. Cas. 1254, 5 Mason, 95; West v. Waddill, 33 Ark. 575; Wringold v. Stone, 20 Ark. 526; Adair v. Cummin, 48 Mich. 375, 12 N.E. 495; Holden v. Meadows, 31 Wis. 284; McLachlan v. Staples, 13 Wis. 448; Stetson v. Bass, 9 Pick. 27; Wiggin v. Sweet, 6 Metc. 194, 9 P. I. 166; 2 Leading Cases Eq. 208 and note; Nelson v. Rockwell, 14 Ill. 375; Bruce v. Doolittle, 81 Ill. 103; Bond v. Lockwood, 33 Ill. 212; 1 Woerner Admin. 1132, and note; Miller v. Steele, 64 Ind. 79; Greene v. Sargent, 23 Vt. 466, 56 Am. Dec. 88; 11 Am. & Eng. Enc. Law (2d Ed.) 1315 and 1316.
The amended complaint alleges that the remedy by motion would not be adequate. The fraud on which we predicate our right to set aside the order discharging the assignee relates to the very merits of the accounting, and the honesty and fairness thereof. To require a suitor to produce evidence covering the entire administration of this trust by the assignee so as to show that the accounting was not honest, on affidavits, is simply to deny him all remedy. It is only by the examination and cross-examination of the witnesses that the truth can be ascertained. It is absurd to require a party to make a motion to set aside a judgment discharging the assignee, upon which motion the entire question of the court is involved and must be investigated; and when, after such investigation on motion it must be investigated a second time in a distinct proceeding in equity. It is not adequate remedy to compel a party to resort to two proceedings when one would suffice. 11 Am. & Eng. Enc. Law (2d Ed.) 201.
Adequate remedy at law means one as practical and efficient as that which equity would afford under the same circumstances. 11 Am. & Eng. Enc. of Law, 200; Morse v. Nicholson, 38 A. 178; Hedlund v. Dewey, 105 F. 541; Springfield Milling Co. v. Barnard N. Co., 81 F. 261.
The limitation upon proceedings by motion to open a judgment upon some ground going to the right of plaintiff to the relief granted does not militate at all against jurisdiction in equity to protect a person from a judgment obtained against him by fraud. California Beet Sugar Co. v. Porter, 9 P. 313; Baker v. Riordan, 4 P. 232; Brennan v. Bridge Company, 47 A. 668; Williams v. Pyle, 56 S.W. 833; Hendron v. Kinner, 81 N.W. 783; Meyers v. Smith, 80 N.W. 273; Stong v. Gilbertson, 14 Mo. 116; Maberry v. McClurg, 51 Mo. 256; Mock v. Pleasants, 34 Ark. 63; Hackley v. Draper, 60 N.Y. 88; Wickersham v. Comerford, 31 P. 358; Noyes v. Willard, 18 F. Cas. 469; Griffith v. Godley, 113 U.S. 89, 28 L.Ed. 934; Johnson v. Coleman, 23 Wis. 452; 99 Am. Dec. 193; Connell v. Stelson, 33 Iowa 147; Caruthers v. Hartfield, 24 Am. Dec. 580; Hernandez v. James, 23 La.Ann. 484.
The jurisdiction of a court of equity is not taken away by implication because another remedy has been afforded the suitor. The original jurisdiction of equity remains intact. Waldron v. Simmons, 28 A. 629; Schroeder v. Loeber, 75 Md. 195, 23 A. 579, 24 A. 226; Wells v. Pierce, 27 N.H. 503; Irick v. Black, 17 N.J.Eq. 189; King v. Baldwin, 17 Johns. 384, 8 Am. Dec. 415; Phipps v. Kelly, 6 P. 707; McConihay v. Wright, 121 U.S. 201, 7 S.Ct. 940, 30 L.Ed. 932; Putnam v. New Albany, Fed. Cas. No. 11,481; Sweeny v. Williams, 36 N.J.Eq. 627; Weslay Church v. Moore, 10 Pa.St. 273; Corrothers v. Board of Education of Clinton Dist., 16 W.Va. 527; Ladd v. Stevenson, 19 N.E. 842, 8 Am. St. Rep. 748; Jones v. Newhall, 115 Mass. 224, 15 Am. Rep. 97.
A court of equity may grant relief against the enforcement of a judgment at law, although a court of law having power to grant the relief has refused to do so. 12 Am. & Eng. Enc. Law, 139, 140; Baldwin v. Davidson, 40 S.W. 765; Stewart v. Caldwell, 54 Mo. 536; Mattern v. Gage, 15 Daly, 38; Foote v. Despain, 67 Ill. 28; How v. Mortell, 23 Ill. 478; Beams v. Denham, 2 Scam. 53; Wilday v. McConnell, 63 Ill. 278; Babcock v. McCommant, 53 Ill. 215; Brake v. Payne, 37 N.E. 140; Mosley v. Gilborn, 54 P. 121; Asbury v. Frisz, 47 N.E. 328; Burnett v. Milnes, 46 N.E. 464; Hayden v. Hayden, 46 Cal. 333; Ramsey v. Hicks, 53 Mo.App. 190; Link v. Link, 48 Mo.App. 345; Henderson v. Moore, 34 S.E. 446; Thompson v. Laughlin, 27 P. 752; Merriman v. Walton, 38 P. 1108.
J. A. Sorley and Geo. A. Bangs, for respondent.
An order discharging an assignee for the benefit of creditors is the final determination of a proceeding properly brought in a court of this state, and is a judgment. Section 4675, Compiled Laws of 1887; 17 Am. & Eng. Enc. Law (2d Ed.) 762; 1 Freeman on Judgments, sections 1 and 2; Joy v. Elton, 9 N.D. 428, 83 N.W. 875; Freeman v. Wood, 11 N.D. 1, 88 N.W. 721.
The plaintiff Jones will not be permitted to proceed in equity against a judgment to which he was not a party and which did not at its rendition affect any of his rights. 2 Freeman on Judgments, section 512; 15 Enc. Pl. & Pr. 249; Packard v. Smith, 9 Wis. 184; Bank v. Heiman, 80 Ga. 624, 5 S.E. 795; West v. Carter, 129 Ill. 249, 21 N.E. 782; Walton v. Pearson, 111 N.C. 428, 7 S.E. 566; Ward v. Clark, 6 Wis. 509; Bean v. Fisher, 14 Wis. 57, ex parte McKenzie, 162 Ill. 48, 44 N.E. 413; Bough v. Bough, 37 Mich. 59, 26 Am. Rep. 495; Powell v. McDowell, 16 Neb. 424, 20 N.W. 271; Robinson v. Stevens, 22 A. 80.
The right to complain of a judgment is nonvendible, and a cause of action that sounds in deceit or fraud is nonassignable. Zabriskie v. Smith, 13 N.Y. 322; Read v. Hatch, 19 Pick. 47; Cutting v. Tower, 14 Grey. 183; Leggate v. Moulton, 115 Mass. 552; Crocker v. Bellangee, 6 Wis. 645, 70 Am. Dec. 489; Milwaukee & Minn. R. R. Co. v. Milwaukee & West. R. R. Co., 20 Wis. 174, 88 Am. Dec. 740.
A cause of action sounding in a deceit is not assignable. Dayton v. Fargo, 45 Mich. 153, 7 N.W. 758; Brush v. Sweet, 38 Mich. 574; Norton v. Tuttle, 60 Ill. 130; Holmes v. Moore, 5 Pick. (Mass.) 257; Read v. Hatch, 19 Pick. 47; Cutting v. Tower, 14 Grey, 183; Leggate v. Moulton, 115 Mass. 552; Marshall v. Means, 12 Ga. 61, 56 Am. Dec. 444; Milwaukee & Minn. R. R. Co. v. Milwaukee & West. R. R. Co., 20 Wis. 174, 88 Am. Dec. 740; Crocker v. Bellangee, 6 Wis. 645, 70 Am. Dec. 489; Murray v. Buell, 76 Wis. 657, 45 N.W. 667, 20 Am. St. Rep. 92; Sanborn v. Doe, 92 Cal. 152, 28 P. 105, 27 Am. St. Rep. 101; Whitney v. Kelley, 94 Cal. 146, 29 P. 624, 15 L. R. A. 813, 28 Am. St. Rep. 106; Little v. Hawkins, 19 Gr. (Ont. 1872) 267; Pomeroy's Eq. Jur. section 1276; 1 Perry on Trusts, section 69; 1 Bigelow on Fraud, pp. 214 and 545; Greenhood on Public Policy, p. 432.
The complaint does not state facts sufficient to constitute a cause of action and is vulnerable to four objections, to wit: (a) The fraud and deceit pleaded is intrinsic to the judgment. (b) The bill fails to negative laches. (c) The allegations of the bill are vague, indefinite and uncertain. (d) The plaintiff has an adequate and speedy remedy other than by this bill.
A court of equity will not interpose to vacate or set aside a judgment obtained by perjury or subornation of perjury. United States v. Throckmorton, 98 U.S. 61, 25 L.Ed 93; Greene v. Greene, 2 Gray, 361, 61, Am. Dec. 454; Hass v. Billings, 43 N.W. 797; Miller v. Morse, 23 Mich. 365; Gray v. Barton, 62 Mich. 180, 28 N.W. 813; Falson v. Falson, 55 N.H. 78; Smith v. Lowery, 1 Johns, ch. 432; Ross v. Wood, 70 N.Y. 8; Pico v. Cohn, 91 Cal. 129, 27 P. 357, 13 L. R. A. 336; Van Walters v. Board of Childrens' Guardian of Marion County, 132 Ind. 567, ...
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