Horner v. Schinstock

• Decision Date: 08 May 1909
• Docket Number: 15,982
• Parties: A. M. HORNER v. THEODORE SCHINSTOCK
• Court: Kansas Supreme Court

101 P. 996

80 Kan. 136

A. M. HORNER v. THEODORE SCHINSTOCK

No. 15,982

Supreme Court of Kansas

May 8, 1909

Decided January, 1909.

Error from Kingman district court; PRESTON B. GILLETT, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

DAMAGES--Judgment Obtained by Perjury. A party against whom a judgment was obtained by the perjury of the adverse party, committed in testifying on the trial of the action wherein the judgment was rendered, can not, while the judgment remains in force maintain an action against such adverse party for damages alleged to have been suffered because of such perjury.

C. W. Fairchild, for the plaintiff in error.

George L. Hay, and L. F. Walter, for the defendant in error.

OPINION

BENSON, J.:

The plaintiff alleged that in a former action between the same parties the defendant had given testimony which was wilfully and corruptly false, and had thereby obtained a judgment against the plaintiff, causing damages for which he prayed judgment. A demurrer to this petition was sustained, and of this ruling the plaintiff complains.

It was held in Laithe v. McDonald, 12 Kan. 340, that where a party had obtained a judgment by wilful and corrupt perjury committed in the absence of the other party, who had exercised due diligence, the judgment should be vacated in an action brought for that purpose under section 568 of the civil code, which provides that the district courts may vacate or modify their own judgments "for fraud practiced by the successful party in obtaining the judgment or order." The case just referred to is cited by the plaintiff as sustaining his contention, but it does not. That was a direct attack upon the judgment to set it aside; by this action the plaintiff treats the judgment as valid, and seeks to recover damages suffered from it. Such an action can not be maintained. It is the judgment that causes the injury, and it is legally impossible that the losing party to a final adjudication should have an action against his successful adversary to recoup in damages for what he was thus adjudged to render. A judgment, unless set aside or reversed, marks the end of the controversy, and not a mere pause in the litigation. It is possible that a miscarriage of justice may occur through perjury in securing a judgment. It is also possible that damages, if they could be awarded in a new action, might be recovered through the perjury of the other party, and so each succeeding adjudication might be reexamined in a fresh action until the parties were exhausted. It will not do to open the door to such general mischief in order to afford relief against the supposed hardships of a particular case.

While decisions upon the precise situation are not numerous, they are persuasive. In an action commenced in New York, to recover damages because of a judgment obtained by the alleged perjury of the defendant on a trial between the same parties in Connecticut, it was said in the opinion of Mr. Justice Spencer, after stating the evils that would result from the precedent if recovery were permitted:

"The old rule is the safest, that the parties must come prepared at the trial to vindicate themselves, and to detect the falsity of the testimony brought against them, if it be untrue; or they must take their chance of obtaining a new trial, by showing that they were surprised, and that they have detected the imposition." (Smith v. Lewis, 3 Johns. [N.Y.] 157, 167.)

In a concurring opinion in the same case Mr. Chief Justice Kent observed:

"It would be against public policy and convenience, it would be productive of endless litigation, and it would be contrary to established precedent, to allow the losing party to try the cause over again in a counter suit because he was not prepared to meet his adversary at the trial of the first suit. The general law of the land, and the rules of every superior court of competent jurisdiction, sufficiently provide against forcing a party to trial without giving him a due opportunity to prepare for his defense, and cases of surprise and injustice are generally redressed by the discretionary power of the courts in setting aside verdicts." (Page 168.)

In addition to the power to set aside verdicts upon motion, referred to in the foregoing quotation, section 570 of our code provides that a new action may be maintained for that purpose. The plaintiff was not therefore denied a remedy by due course of law, as he contends.

This question was presented in the supreme court of Maine in an early case. The plaintiff alleged that the defendants in a former action against him had recovered by means of false testimony, and sued for damages caused by the judgment obtained through such perjury. The court said:

"But the judgment against the plaintiff, so long as it remains in force, must be considered as true and just. He can not be permitted to aver the falsity of that judgment, as the ground for the recovery of damages. It constitutes in itself a clear and unequivocal denial of his allegations. He says...