Godfrey v. Camp
| Decision Date | 16 April 1917 |
| Docket Number | 13433. |
| Citation | 164 P. 210,95 Wash. 674 |
| Court | Washington Supreme Court |
| Parties | GODFREY et al. v. CAMP et al. |
Department 1. Appeal from Superior Court, Spokane County; E. H Sullivan, Judge.
Suit by George H. Godfrey and others against Nellie Camp and others. From an order sustaining a demurrer to the complaint, and dismissing the action, plaintiffs appeal. Affirmed.
Scott & Campbell, of Spokane, for appellants.
Ira Honefenger and Hamblen & Gilbert, all of Spokane, for respondents.
This action was brought to set aside a judgment in the matter of the estate of Sarah J. Brown, deceased. The trial court sustained a demurrer to the complaint, and dismissed the action. The plaintiffs have appealed from that order.
It appears upon the face of the complaint that these plaintiffs instituted on action to set aside the purported will of Sarah J. Brown, deceased. That action was tried in the superior court on June 19, 1912, and a judgment was entered declaring the will valid. That judgment was afterwards affirmed upon appeal to this court. In re Brown's Estate, 83 Wash. 528, 145 P. 591. After the judgment was affirmed the plaintiffs petitioned this court for a rehearing. That petition was denied in April, 1915. Thereafter in June, 1915 these plaintiffs filed a petition in this court asking permission to attack the judgment upon the facts set out in this complaint. The petition was denied. Afterwards a petition for a rehearing thereon was also denied. Thereafter this action was brought in the court below alleging the foregoing facts, and also that the purported will which had been adjudicated to be valid was invalid because it was a forgery, and that since the original trial additional evidence had been discovered which would show the will to be a forgery; that it was afterwards discovered that the witnesses who testified in favor of the will had perjured themselves upon the trial; that these facts were unknown to the plaintiffs at the time of the original trial, and could not have been discovered with reasonable diligence. This, in short, is the substance of the complaint.
Upon the hearing of the demurrer the trial court was of the opinion that there was no jurisdiction in the superior court to reopen the case and retry it; and also that the complaint did not state facts sufficient to constitute a cause of action. We think the trial court was right upon both grounds.
This court in a number of cases has held that after a judgment has been affirmed upon appeal, the superior court has no jurisdiction of an action to vacate it for fraud, where permission to do so has not been granted by this court. Kath v. Brown, 53 Wash. 480, 102 P. 424, 132 Am. St. Rep. 1084; Kath v. Brown, 69 Wash. 306, 124 P. 900; Cochrane v. Van de Vanter, 13 Wash. 323, 43 P. 42; Pacific Drug Co. v. Hamilton, 76 Wash. 524, 136 P. 1144; State ex rel. Prentice v. Superior Court, 86 Wash. 90, 149 P. 321. In Kath v. Brown, 53 Wash. 480, 102 P. 424, 132 Am. St. Rep. 1084, supra, we said, in a case very much like this:
In Pacific Drug Co. v. Hamilton, 76 Wash. 524, 136 P. 1144, supra, we held that the lower court was without jurisdiction to amend a judgment which had been affirmed by this court. In State ex rel. Prentice v. Superior Court, supra, after referring to a number of cases from this court, we said:
- It is plain therefore that the lower court had no jurisdiction to vacate, modify, or set aside the decree ordered entered by this court, except by permission of this court, which was not had.
This is decisive of the case, but, in view of the fact that no opinion was written when the application for permission to reopen the case was denied, we deem it proper to consider briefly the sufficiency of the complaint. It appears therefrom that the will of Sarah J. Brown, deceased, was attacked by these plaintiffs upon the ground that the will was forged and supported by perjured testimony. After a trial of that question the superior court found that the will was valid, and entered a judgment to that effect. The appellants now claim that since that trial they have discovered other evidence to the effect that the will was a forgery; that the witnesses who testified in that case testified falsely; and that these facts were discovered with due diligence after the trial.
In the case of Robertson v. Freebury, 87 Wash. 558, 152 P. 5, L. R. A. 1916B, 883, this court had occasion to consider the questions presented here, and we said:
'* * * Assuming that the court's judgment was based upon perjured testimony, that fact was unavailing, for the reason that judgments or decrees of a court of justice cannot be set aside on a collateral attack as being fraudulently obtained upon the sole ground that they were obtained on perjured evidence, without some other extrinsic or collateral fact entering into and constituting fraud in the transaction.'
And further on in the same opinion, defining what were 'extrinsic or collateral facts,' we quoted from Pico v. Cohn, 91 Cal. 129, 25 P. 970, 27 P. 537, 13 L. R. A. 336, 25 Am. St. Rep. 159, as follows:
No such extrinsic or collateral facts were alleged. The foundation for this rule, of course, is, that there must be an end of litigation. And when a case is once tried in a court of competent jurisdiction, it is finally tried, and the findings therein are conclusive, unless reversed on review or upon appeal. That rule is clearly applicable in this case. The case was tried originally upon the question of fraud procured by forgery. If the will was forged, the testimony in support of it must necessarily have been perjured. When these plaintiffs sought to set aside that will, they entered the contest, assuming that they were prepared to show these facts. They made that issue in the case, tried it out, and were not successful. If they may now, after the case has been affirmed upon appeal, again raise the same issue, and retry it, and again fail, then upon further discovered testimony they may have another trial, and so on indefinitely. Our system of jurisprudence does not permit any such procedure. The only tenable theory is that a trial once had is conclusive upon the parties when no errors are found and when no fraudulent contrivance prevents a fair trial. New trials, of course, may be granted as provided by the Code, and not otherwise.
We are therefore satisfied that the trial court properly sustained the demurrer upon both grounds.
The judgment is affirmed.
After the opinion had been filed and become final in Re Brown's Estate, 83 Wash. 528, 145 P. 591, the contestants petitioned this court for leave to reopen the case in the court below, and to submit certain positive testimony tending to show not only that the will was a forgery, but actually fastening the crime of forgery upon Nellie Waterhouse, now Nellie Camp, and George McFarlane. The court denied the petition without opinion, although the petitioners had brought themselves strictly within the rule of Kath v. Brown, 53 Wash. 480, 102 P. 424, 132 Am. St. Rep. 1084, s. c., 69 Wash. 306, 124 P. 900, and Post v. Spokane, 28 Wash. 701, 69 P. 371, 1104. The majority cites as sustaining authority Cochrane v. Van de Vanter, 13 Wash. 323, 43 P. 42, Pacific Drug Co. v. Hamilton, 76 Wash. 524, 136 P. 1144, and State ex rel. Prentice v. Superior Court, 86 Wash. 90, 149 P. 321; but these cases have no bearing, as I shall show.
Counsel asked a rehearing. This was refused--again without an opinion. Whereupon, no other course being open, they began this suit in equity, setting up the fraud and facts subsequently...
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