Keeler v. Elston

• Decision Date: 02 November 1887
• Citation: 34 N.W. 891,22 Neb. 310
• Parties: D. KEELER, PLAINTIFF IN ERROR, v. GEORGE W. ELSTON, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

34 N.W. 891

22 Neb. 310

D. KEELER, PLAINTIFF IN ERROR, v. GEORGE W. ELSTON, DEFENDANT IN ERROR

Supreme Court of Nebraska

November 2, 1887

ERROR to the district court for Platte county. Tried below before POST, J.

Affirmed.

McAllister Brothers, for plaintiff in error.

1. This judgment cannot be attacked in a collateral proceeding. Millard v. Marmon, 7 N. E. Rep., 468. Willis v Bayles, 5 N. E. Rep., 8. Lawrey v. Howard, 3 N. E Rep., 124. Bryant v. Estabrook, 16 Neb. 217. Pettiford v. Zoellner, 8 N. W. Rep., 57. Hall v Durham, 9 N. E. Rep., 926. A judgment can only be thus attacked for want of jurisdiction.

2. Fraud is no defense to an action on a judgment of a sister state. Mills v. Duryee, 7 Cranch, 481. Christmas v. Russell, 5 Wallace, 291. Rea v. Hulbert, 17 Ill. 572. Union Trust Co. v. Rochester & P. Ry. Co., 29 Federal Rep., 609. 28 Id., 36.

George G. Bowman, for defendant in error, cited: Dobson v. Pearce, 12 N.Y. 156. Davis v. Headley, 22 N.J.Eq. 115. Doughty v. Doughty, 27 Id., 315.

OPINION

REESE, J.

This action was originally commenced in the county court of Platte county. It was founded upon a judgment rendered in favor of plaintiff and against defendant by the district court of Dodge county, Minnesota, in an action then pending between the parties.

In the second count of defendant's answer filed in the county court, it is alleged as a defense that the judgment of the Minnesota court was obtained by fraud, that the action was founded upon a promissory note which had been paid. It is averred that the action was commenced and service had upon defendant while he was temporarily visiting that state, but that after service of process he called the attention of plaintiff to the fact of payment previously made and the circumstances accompanying such payment, whereupon plaintiff admitted the payment, and upon investigation he was satisfied that he had no cause of action against defendant. That plaintiff then promised and agreed "to go at once and dismiss said action, and that he would not further prosecute the same, and that defendant need not employ an attorney nor pay any further attention to it. Thereupon defendant, relying upon such promise and agreement, and believing that said action would be dismissed at once by said plaintiff" returned to his home in Nebraska, and failed to appear and defend said action. "That plaintiff in violation of his promise and agreement did not dismiss the action, but fraudulently and without the knowledge of defendant procured the rendition of the judgment." Plaintiff demurred to this count of the answer, as not stating a defense. The county court overruled the demurrer, and plaintiff refusing to plead further, the cause was dismissed. The cause was then removed to the district court by proceedings in error, where the judgment of the county court was affirmed. For the purpose of obtaining a review of that judgment, plaintiff prosecutes error here.

As is shown by the foregoing, the only question presented is, can a judgment be successfully attacked in this collateral way upon the ground that it was obtained by the fraudulent acts of plaintiff? So far as its effects upon the judgment are concerned, there is a wide difference between fraud, which may be a defense to the action in the first instance, and fraud practiced in procuring the judgment. The well-established doctrine that fraud vitiates everything into which it enters, may as well be applied to a judgment as to a contract, provided the fraudulent act is so connected with obtaining the judgment as to enter into it or form the basis upon which it stands, and by which it was procured. If it can be applied only to the cause of action, then the rendition of the judgment, where there is jurisdiction of the person of the defendant, is an adjudication thereon, and must have the same effect as an adjudication upon any other...