Hogan v. Scott

• Decision Date: 23 April 1914
• Docket Number: 758
• Citation: 186 Ala. 310,65 So. 209
• Parties: HOGAN v. SCOTT.
• Court: Alabama Supreme Court

65 So. 209

186 Ala. 310

HOGAN v. SCOTT.

No. 758

Supreme Court of Alabama

April 23, 1914

Appeal from Chancery Court, Jefferson County; A.H. Benners Chancellor.

Bill by John Scott against John Hogan and others to vacate certain proceedings in the probate court. From a decree overruling demurrer to the bill, respondent named appeals. Reversed rendered, and remanded.

The bill alleges that the father of orator, one John S. Scott died in Jefferson county, seised and possessed of, occupied by him as a homestead, lot No. 21 in block 6, Howell's addition to the town of Woodlawn. That said John Scott left a widow, and your orator who was at the time a minor, under 14 years of age, and who was residing in the above-described property at that time. That on the 29th day of July, 1903 Emma Scott, the widow, filed in the office of the probate judge of Jefferson county, Ala., her petition in writing, in which she averred that she was the widow of said John S. Scott, that said John S. Scott died seised and possessed of no homestead, and leaving no minor children, and praying that said lot 21 be set apart to her in lieu of homestead. Whereupon the judge of probate issued a commission to certain parties therein named to set apart exemptions to the said widow, and on August 4, 1903, the commissioners filed their report with the judge of probate, setting aside lot 21 to said widow. That on August 4th said report was ordered to lie over for 30 days, and on September 4, 1903, the probate judge confirmed the report of said commissioners setting aside said lot 21 in lieu of homestead. (The petitions, reports, and decrees are attached as exhibits.) Paragraph 4 sufficiently appears in the opinion. Paragraph 5 avers that the respondents named are claiming an interest in the lot above described under and by virtue of said probate proceedings, and it is averred that the legal title properly belongs in orator; but, so long as the probate decree remains in force, he has no adequate remedy at law for the enforcement of his right to said property.

Horace C. Wilkinson, of Birmingham, for appellant.

George E. Bush, of Birmingham, for appellee.

GARDNER J.

The material averments of the bill will appear in the report of the case; but for convenience the fourth paragraph will be here quoted, as follows:

"And your orator avers that said petition filed by the said Emma Scott was a fraud upon your orator in this, that said lot 21 was the homestead of the said John S. Scott at the time of his death, and that your orator was at the time of the filing of said petition a minor, under the age of 14 years, and was not made a party in any way to said proceedings, nor had he any knowledge of said proceedings until on or about the 1st day of May, 1912."

This is the only averment of fraud found in the bill, and indeed is the only attack made upon the proceedings in the probate court. It therefore appears that the only equity upon which complainant seeks to rest his case is the cancellation of the judgment and proceedings in the probate court, setting apart said premises as exempt to the widow, and the averments of paragraph fourth, above quoted, constitute the fraud upon which the cancellation is sought.

The sufficiency of the bill in this respect is challenged by numerous assignments of demurrer; but a consideration of each assignment separately is considered unnecessary.

A bill of this character is commonly called an original bill in the nature of a bill of review. McDonald v. Pearson, 114 Ala. 630, 21 So. 534.

Speaking of the general jurisdiction of a court of equity to grant relief against fraud, it was said in the opinion of the above cited case as follows:

"The jurisdiction extends to the vacation of the judgments or decrees of courts which have been procured by fraud. But the final judgment or decree of a court of competent jurisdiction is impeachable only for actual fraud in its procurement." (Italics ours.)

It seems to be a well-established doctrine that the acts for which a court of equity will set aside a judgment of a court of competent jurisdiction have relation to frauds extrinsic or collateral to the matter tried by the first court, and not to a fraud in the matter on which the decree was rendered. And it is equally as well settled that the court will not set aside a judgment because founded on perjured testimony, or on a fraudulent instrument, or for any matter presented by the issue in the first court. Speaking to this question, the court, in the case of United States v. Throckmorton, 98 U.S. 61, 25 L.Ed. 93, has this to say:

"That the mischief of retrying every case in which the judgment or decree rendered on false testimony given by perjured witnesses, or on contracts or documents whose genuineness or validity was in issue, and which are afterwards ascertained to be forged or fraudulent, would be greater, by reason of the endless nature of the strife, than any compensation arising from doing justice in individual cases."

The case of Hanley v. Hanley, 114 Cal. 690, 46 P. 736, is very much in point, as a reading of the facts of that case will disclose. The bill in that case, filed by the heirs of Patrick Hanley, sought to vacate a judgment by which certain property was set aside to the widow, Ellen Hanley, as a homestead, and averred that the said Ellen Hanley willfully, falsely, and fraudulently represented to the court, and testified, that the said premises were community property, and also falsely represented that a certain declaration of homestead had been filed on said premises while she and her husband were actually residing thereon. The bill was held insufficient; the court using this language:

"The decree of the superior court setting apart said homestead was final, unless reversed on appeal, and it cannot be attacked collaterally in an independent action upon the grounds set up in the complaint. A judgment or decree of a court of competent jurisdiction can be set aside in an independent equitable proceeding for fraud only when the fraud alleged was extrinsic or collateral to the matter which was tried and determined by such court, and such is not the character of the fraud alleged in the complaint in this action."

In the opinion it is also declared as settled beyond controversy that a decree will not be vacated merely because it was obtained by forged documents or perjured testimony. Among the instances cited in the books as to what constitutes extrinsic or collateral fraud, as pointed out in the opinion, are these: Keeping the unsuccessful party away from the court by false promise of compromise, or purposely keeping him in ignorance of the suit, or where an attorney fraudulently pretends to help a party, and connives at his defeat, or, being regularly employed, corruptly sells out his client's interest.

The case of Dringer v. Receiver of the Erie Railway, 42 N.J.Eq. 573, 8 A. 811, is of interest in this connection, and the opinion contains many citations and quotations as well. Among other quotations is the following extract from the opinion of Chief Justice Shaw, in the case of Green v. Green, 2 Gray (Mass.) 361, 61 Am.Dec. 454:

"The maxim that fraud vitiates every proceeding must be taken, like other general maxims, to apply to cases where proof of fraud is admissible. But, where the same matter has been either actually tried or so in issue that it might have been tried, proof of fraud is not again admissible. The party is estopped to set up such fraud, because the judgment is the highest evidence, and cannot be controverted."

This case also holds that the acts for which a court of equity will vacate a judgment for fraud have relation to frauds extrinsic and collateral to the matter tried by the court, and not to a fraud in the matter on which the decree was rendered.

The same principle is stated, but in different language, in the case of Stratton v. Allen, 16 N.J.Eq. 229, as follows:

"It seems to be conclusively settled that a judgment can only be impeached in a court of equity for fraud in its concoction."

Similar language is used by Chief Justice Brickell in McDonald v. Pearson, supra, 114 Ala. 644, 21 So. 537, where he says:

"The allegations of the bill have been carefully scrutinized, and, subjecting them to

the tests of the general principles to which we have referred, we cannot reach the conclusion that they make a case of fraud practiced to the injury of the complainants, and certainly not that they can be accepted as disclosing actual fraud in the procurement, or, as is often expressed, 'the concoction' of the decree, justifying its vacation." The following authorities from our own court are also in point: Cromelin v. McCauley, 67 Ala. 542; Stallworth v. Blum, 50 Ala. 46.

The conclusion we here reach is fully sustained in the recent case of Hardeman v. Donaghey, 170 Ala. 362, 368, 54 So. 172, 174, where, in the opinion, it is said:

"There seems to be a well-defined distinction between fraud practiced in the rendition and procurement of a judgment 'in the very act of obtaining the judgment or in its concoction,' and in fraud antecedent to the judgment, such as would have constituted a good defense to the rendition of the judgment, but not connected with the proceedings by which it was obtained. In other words, to come within the former rule, the fraud must relate to the proceedings, such as falsifying the entries, improperly influencing court, jury,

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