Laidler v. Peterson

• Decision Date: 08 July 1939
• Docket Number: 34342.
• Citation: 92 P.2d 18,150 Kan. 306
• Parties: LAIDLER v. PETERSON.
• Court: Kansas Supreme Court

92 P.2d 18

150 Kan. 306

LAIDLER v. PETERSON.

No. 34342.

Supreme Court of Kansas

July 8, 1939

Smith of Girard, for appellant.

Simeon Webb, of Pittsburg, for appellee.

HOCH Justice.

Appellant filed a petition to set aside and vacate a judgment theretofore entered against him in an action for damages. Plaintiff's demurrer to the petition was sustained and defendant appeals.

The question presented is whether under the facts alleged the petitioner was entitled to a hearing on the petition to vacate the judgment.

On April 22, 1938, a jury returned a verdict of $300 in favor of Mildred Laidler in an action brought by her against Chester Peterson for personal injuries suffered in an automobile accident. No appeal was taken. On December 9, 1938, Peterson filed a petition to vacate the judgment and alleged that the verdict and judgment were obtained against him as a result of fraud practiced by the plaintiff and that the fraud could not with reasonable diligence have been discovered during the term at which the verdict and judgment were rendered, or within three days after said verdict and judgment, and that the fraud was discovered by him on the 6th day of December 1938. He alleged that the plaintiff conspired with her attorney, and with a physician who became a principal witness in the case, for the purpose of defrauding the defendant in bringing a false and groundless action for damages against him and claiming that plaintiff had received painful, serious and permanent injuries in the automobile accident, although knowing that such allegations were untrue that on December 6, 1938, plaintiff's attorney called on him "at his store in the town of Farlington, Kansas, for the purpose of serving a notice of attorney's lien upon him attempting to collect or make some compromise of the fraudulent judgment so obtained by plaintiff and her co-conspirators, as aforesaid;" that in the course of the conversation at that time plaintiff's attorney admitted to him that the plaintiff did not receive any injuries in the automobile accident, that the doctor who testified had not treated the plaintiff for any of said alleged injuries as he had testified and that plaintiff was not indebted to him in the sum of $45, or in any other amount for said alleged injuries as theretofore testified to in the trial; that the $45 alleged at the trial to be owing to the doctor was not on account of treatment of injuries of the plaintiff but was for two X-ray pictures at $10 each made for the purpose of bringing the action for damages but which were not used upon the trial, and for $25 which he, the attorney, had agreed to pay to Dr. Montee for appearing as a witness in the trial. Peterson further alleged that the attorney for the plaintiff told him in the same conversation that he had sued him because he thought he had insurance and that he, the defendant, could recover from the insurance company and that his client, the plaintiff, understood he had inherited a large sum of money upon the death of one Walford Peterson, thought by the plaintiff to be defendant's father. Peterson further alleged that the attorney told him that the only money which plaintiff or her husband owed to the doctor who testified was for professional services to the plaintiff and her family at a time long prior to the automobile accident, and that the plaintiff owed the attorney the sum of $50. Upon these allegations and others incidental thereto, and which need not here be recited, Peterson asked the court "by reason of the newly discovered evidence" to vacate the judgment. The plaintiff demurred to the petition on the principal ground that it did not state facts necessary to give the court authority to make the order prayed for, and the demurrer was sustained.

The question here presented is not whether the judgment should be vacated but whether facts were alleged which entitled the petitioner to a hearing on the petition to vacate. In determining that question all well-pleaded allegations of the petition must be considered as true, since the case is here upon demurrer. It should also be noted that this is not a collateral attack upon the judgment but an action brought by one of the parties in the same proceeding.

Three sections of the code of civil procedure are involved--G.S.1935, 60-3005, 60-3007, subdivision 4, and 60-3008. Section 60-3005 provides for the granting of a new trial where the grounds alleged therefor could not with reasonable diligence have been discovered before but are discovered after the term at which the verdict was rendered and more than three days after the verdict, application to be made by petition and filed not later than the second term after discovery. Section 60-3007, subdivision 4, provides that judgments may be vacated or modified at or after the term at which such judgment was rendered "for fraud, practiced by the successful party, in obtaining the judgment or order," and 60-3008 provides that such proceedings to vacate can only be commenced within two years after the judgment was rendered. In the instant case the judgment was rendered on June 1, 1938, and the petition to vacate was filed on December 9, 1938. The petition was filed within the time prescribed in either of the sections referred to.

A majority of the court has reached the conclusion that the petition was good as against demurrer, but there is disagreement as to the particular section of the code which is applicable. One view supports the petition under the provisions of 60-3005 and another under those of 60-3007, both sections being invoked by appellant.

Section 60-3005 provides that new trials may be granted on account of newly discovered evidence which with reasonable diligence could not have been discovered at the time of the trial. The petition here, while technically a petition to vacate, and not in so many words a petition for a "new trial," met the conditions laid down in the section. It adequately plead newly discovered evidence, it was filed "not later than the second term after discovery," and assuming as against the demurrer that the admissions were made as and when alleged, it cannot be said that there was any lack of diligence in discovery by the petitioner.

In the case of Huls v. Gafford Lumber & Grain Co., 120 Kan. 209, 243 P. 306, 309, this court stated that "intrinsic" fraud may be a basis for relief under section 60-3005 (then Civil Code § 308). In that case the court said: "*** if the fraud which has crept into judicial proceedings is intrinsic it must be corrected, if at all, by a motion for a new trial filed within three days after the judgment tainted with such fraud is rendered. (Civ.Code § 306 ***), or by a petition for a new trial, if applicable, filed not later than the second term after the discovery of the fraud (Civ.Code § 308 ***). Whether such new trial is invoked by motion or by petition, such proceedings are supplemental to those of the original action, and must be undertaken in that identical case."

We next consider the provisions of Section 60-3007 which provides for vacating a judgment for "fraud, practiced by the successful party, in obtaining the judgment or order." It is contended by appellee that the fraud referred to in that section is "extrinsic" fraud, that the fraud alleged was entirely "intrinsic" and that therefore the petition was subject to demurrer. It is difficult and perhaps impossible to harmonize some of the statements made upon that proposition in different decisions of this court. In most cases, however, an examination of the particular facts dispels the seeming conflict. Strangely, one of the cases most frequently cited in support of the view that the fraud contemplated by this section of the code is "extrinsic" fraud only is the case of Potts v West, 124 Kan. 815, 262 P. 569. Careful examination, however, of the facts in that case discloses that it in fact supports the opposite view. In that case the petition to vacate was filed about six years subsequent to the judgment. The court stated that the proceedings were governed by the provisions of the code which required that action be brought within two years. The court then proceeded to discuss the contention of the petitioner that the petition to vacate might be considered a new and independent suit in equity and as such be independent of the code provisions. It was upon that point that the court said, "That may not be done, because the fraud of which he complains was intrinsic in the determination of the action to quiet title. Equity may set aside a judgment procured by extrinsic fraud." In other words, being filed out of time, under the code, it would have to be based, as an independent proceeding in equity, upon "extrinsic" fraud. Several cases were therein discussed, among them the case of Harvey v. Dolan, 103 Kan. 717, 176 P. 134. The latter case involved an action to open up a decree in a former suit to quiet title, and it was alleged that in the petition to quiet title certain false and fraudulent allegations had been made. The action to vacate was not brought until six years after the rendition of the judgment and the case simply held that the petition could not be entertained, not having been filed within two years. In Elfert v. Elfert, 132 Kan. 218, 294 P. 921, it was held that the judgment could not be vacated because the petition had not been filed within the time prescribed by Sections 60-2530 and 60-3007, which were therein involved, and the opinion...