Krall v. Libbey

• Decision Date: 03 November 1881
• Citation: 10 N.W. 386,53 Wis. 292
• Court: Wisconsin Supreme Court
• Parties: KRALL v. LIBBEY AND ANOTHER.

53 Wis. 292

10 N.W. 386

KRALL

v.LIBBEY AND ANOTHER.

Supreme Court of Wisconsin.

Filed November 3, 1881.

Appeal from circuit court, Winnebago county.

Gabe Bouck, for respondent.

Pike & Van Keuren, for appellants.

COLE, C. J.

We fail to perceive any sound principle which permits the defendants to impeach or question the validity of the judgment of Krall v. Lull. When that judgment was recovered in the circuit court they were strangers to it. But they saw fit voluntarily to enter into the statutory undertaking, conditioned, among other things, to pay that judgment in case it should be affirmed in this court. The judgment was affirmed. The event or condition upon which they absolutely bound themselves to pay the judgment happened or was fulfilled. It is not claimed there was any fraud or collusion in the proceedings on appeal to secure an affirmance of the judgment. Had the affirmance in this court been brought about through collusion of the parties; had the appellant intentionally made default, or neglected to present his case when he had good legal grounds for reversal; and had this been done for the purpose of defrauding the sureties in the undertaking,--there would certainly be ground for saying they should be relieved from their obligation to pay the judgment. But nothing of the kind is claimed or pretended, and it must be presumed that the judgment was rightfully affirmed on full consideration of the case on its merits. Therefore the event has happened upon which the sureties, in plain language, undertook to become absolutely charged. What they now seek to show is that the original judgment was procured by fraud; that the verdict was obtained by false testimony introduced on the trial which the plaintiff in the action knew to be false. That, in substance, is the defence which the sureties set up in their answer to the action upon their undertaking. We are not aware of any case which holds that such a defence is available to them where the facts were at all similar to those presented on this record, and we see no reason why it should be. For, as we have said, they were entire strangers to the original litigation; their rights were in nowise involved or affected by that suit. But, after judgment was rendered in the circuit court, they voluntarily assumed the obligation to pay it if it should be affirmed on appeal. Why should they then be permitted to impeach the validity of that judgment, on any ground, and retry the cause.

The able and astute counsel for the defendants invokes the doctrine that courts of equity relieve against judgments at law obtained by fraud. Undoubtedly they do in a proper case, and on the application of the proper party. But the learned counsel failed to cite a case where the...