Lamb v. King
| Decision Date | 27 January 1941 |
| Docket Number | 6713 |
| Citation | 296 N.W. 185,70 N.D. 469 |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. The judgment of a district court, having jurisdiction of the parties and the subject matter, imports absolute verity so long as it stands unmodified in any respect.
2. As long as such a judgment stands, neither party can maintain an action to vacate and set aside said judgment on the ground that the same was obtained by fraud and deception when such party has an adequate remedy by motion.
3. Where a party to an action claims that the judgment was obtained by fraud, he has the remedy by motion to vacate such judgment, made in the court rendering it.
Appeal from District Court, Stark County; G. Grimson, Special Judge.
Action by J. S. Lamb, in his official capacity of State Highway Commissioner, against Elmer King and another, to set aside a judgment for defendants against the State and the State Highway Commission and Commissioner for damages to land by construction of a state highway. From a judgment vacating the prior judgment, defendants appeal.
Reversed and action dismissed.
Murray & Murray, for appellants.
Charles A. Verret, for respondent.
This is an action brought in the district court of Stark county by "J. S. Lamb, in his official capacity as State Highway Commissioner of the state of North Dakota" to set aside the judgment entered in the same court on May 3, 1939, in an action wherein Elmer King and Mrs. Anna King, the defendants herein, were plaintiffs, and Stark county, a municipal corporation, the state of North Dakota, and the State Highway Commission and Commissioner were defendants the State Highway Commissioner at the time the judgment was entered being Mr. P. H. McGurren.
To understand the nature of the judgment sought to be vacated, and the principles which underlie this method used, it is necessary to state certain more or less decisive facts.
In June, 1936, defendants herein, as plaintiffs, commenced an action in the district court of Stark county against Stark county, the state of North Dakota, the State Highway Commission, and the State Highway Commissioner to recover damages alleged to have accrued to their land because of the construction of a state highway.
At the trial in December, 1937, Mr. W. J. Austin appeared as attorney for the state of North Dakota, and for the State Highway Commission and Commissioner. A motion to dismiss as against Stark county was granted. The case was submitted to a jury, and a verdict was returned against the remaining defendants for $300. The plaintiffs moved for a new trial on several grounds, including that the damages awarded were greatly inadequate, and were based upon passion and prejudice. The motion was heard by Hon. H. L. Berry, the presiding judge, and on February 8, 1938, he made an order granting a new trial.
In November, 1938, the parties stipulated that the case would be tried before the Hon. Harvey J. Miller, without a jury.
On January 7, 1939, the parties entered into a stipulation in writing, signed by Messrs. Jacobsen and Murray, for and on behalf of their clients, Elmer King and Mrs. Anna King, by Mr. P. H. McGurren in person, and by Mr. Austin as the counsel for the state and for the Highway Commission, by the terms of which the parties compromised and adjusted the damages as shown by these paragraphs:
On May 3, 1939, this stipulation was presented to the Hon. Harvey J. Miller, judge of the district court, and judgment thereon was entered.
On or about January 17, 1939, Mr. McGurren resigned as State Highway Commissioner, and was succeeded by Mr. J. S. Lamb.
In August, 1939, Elmer King and Mrs. Anna King applied to the district court of Burleigh county for a writ of mandamus directed to the state auditor and to the state treasurer, requiring the state auditor to draw a warrant on the state treasurer for the amount of this judgment, and the state treasurer to pay the said warrant, or to show cause why said warrant should not be paid.
The auditor and treasurer made a return on the day set, and on the hearing the district court issued the writ, holding and determining, among other things, that the judgment obtained by plaintiffs King against the state, etc; was a valid judgment and should be paid by the state out of an appropriation made by the legislature at its session in 1937 for the State Highway Department, "particularly appropriation made under chapter 34, Laws of 1937; and particularly appropriation made by the legislature for the State Highway Department in the year 1939, same being chapter 45, Laws of 1939," which writ of mandamus was issued in September, 1939.
In September, 1939, this action at bar was commenced, the summons and complaint being served upon the defendant Elmer King on September 20, 1939. The state of North Dakota is not a party to this action.
The complaint charges that all of the proceedings up to the entry of the judgment sought to be vacated were had "during a former administration of the State Highway Department, and that an investigation . . . was not commenced until after the present state administration took over the State Highway Department" in January, 1939; and "that the said investigation is yet in progress and may lead to the discovery of further collusion and fraud in connection with said proceedings and action," though no allegation of fraud and collusion was made in the complaint prior to this allegation.
The complaint further alleges that if the judgment be permitted to remain in force and effect, "the State Highway Department and the state of North Dakota will be irreparably damaged;" that the order...
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