Mattoon v. Cole
| Decision Date | 07 December 1943 |
| Citation | 143 P.2d 679,172 Or. 664 |
| Parties | MATTOON ET UX. <I>v.</I> COLE |
| Court | Oregon Supreme Court |
5. Judgment debtors who made no application under statute to be relieved from default judgment because of mistake, inadvertence, surprise or excusable neglect, although they had one year from discovery to make such application, were not precluded from suing in equity for cancellation of judgment.
Judgment
6. The courts are more inclined to open up default judgment under statute authorizing such relief for mistake, inadvertence, surprise or excusable neglect than to vacate judgment in an independent suit.
Judgment
7. Equity will not set aside judgment unless plaintiff can impeach judgment by facts or on grounds of which he could not have availed himself at law, or was prevented from doing so by fraud or accident, or act of opposite party, unmixed with negligence or fraud on his own part.
Judgment
8. Equity cannot relieve judgment debtor who has neglected opportunity of being heard although judgment is manifestly wrong.
Judgment
9. "Fraud" for which equity may set aside judgment means perpetration of intentional wrong or breach of duty growing out of fiduciary relation.
Judgment
10. To obtain cancellation of judgment in equity on ground of fraud, the fraud charged must be clearly stated and proved, and it must be shown that it was practiced or participated in by judgment creditor, and that it was actually effective in bringing about judgment.
Judgment
11. A complaint alleging that plaintiffs, who had title to realty subject to mortgage through conveyance from mortgagor, were served with summons in foreclosure suit, but failed to appear on assumption that, because defendant mortgagee knew they had not assumed mortgage, he would not seek personal judgment against them, and failing to allege that mortgagee agreed not to seek personal judgment or prevented plaintiffs from appearing, stated no cause for cancellation of judgment in equity.
Power to open "consent" judgment, note, 139 A.L.R. 421. See
also, 31 Am. Jur. 178
34 C.J., Judgment, § 372
Before BAILEY, Chief Justice, and BELT, ROSSMAN, KELLY and LUSK, Associate Justices.
Appeal from Circuit Court, Multnomah County.
Suit by O. Mattoon and wife against Raymond B. Cole, as executor of the estate of Rudolph Janesch, to cancel a judgment and enjoin execution thereon. From a decree for defendant, plaintiffs appeal.
AFFIRMED.
L.B. Sandblast, of Portland, for appellants.
William C. Palmer, of Portland (Weinke & Amstutz, of Portland, on the brief) for respondent.
This suit was instituted by O. Mattoon and Mollie Mattoon, his wife, against Raymond B. Cole as executor of the estate of Rudolph Janesch, deceased, to cancel and annul a judgment entered against the plaintiffs herein and in favor of Rudolph Janesch about June 15, 1937, and to enjoin the defendant herein from issuing execution on such judgment. The demurrer of the defendant to the second amended complaint on the ground that it did not state facts sufficient to constitute a cause of suit was sustained. Upon the plaintiffs' refusal to plead further a decree was entered dismissing the suit, from which decree the plaintiffs have appealed.
The following facts appear from the second amended complaint: Sometime prior to November, 1927, Nathan M. Simon and his wife were the owners of lot 13, block 7, Parkhurst addition to the city of Portland, and, as such owners, had mortgaged the described property for $2,000 to Marie Janesch, who assigned the mortgage to Rudolph Janesch. Thereafter, on or about November 18, 1927, Nathan M. Simon and his wife sold and conveyed the real property to the plaintiffs, subject to the "aforesaid mortgage, but in said transaction plaintiffs did not agree verbally, in writing or otherwise, then, or at any other time, either before or afterward, to assume or pay the said mortgage or the debt evidenced thereby, or the promissory note evidencing such debt or any part thereof".
Prior to April 1, 1937, the indebtedness for which the mortgage was given as security became delinquent. On or about that date the decedent, who had known from the time of the conveyance of the property to the plaintiffs herein that they had not assumed or agreed to pay the mortgage or the debt thereby evidenced came to the plaintiffs' home and told them that he "would immediately institute proceedings upon said mortgage, unless the plaintiffs would assume and agree to pay said mortgage and promissory note and the full amount of the debt so evidenced by said documents aforesaid". The plaintiffs then told the decedent that they would not agree to pay the mortgage. About a month later the decedent made the same demand and it was again refused; and about the same time an agreement was entered into between the plaintiffs and the decedent whereby the plaintiffs granted to him an option for a quitclaim deed from them either before or after foreclosure upon payment of $25 to them by the decedent.
On May 28, 1937, the decedent instituted foreclosure proceedings against the mortgagors and others, including these plaintiffs. In the complaint therein the decedent alleged that these plaintiffs had "agreed to pay said note and mortgage". The plaintiffs herein were served in that suit "by copy of summons only, and neither of them received a copy of the complaint", and "each of them refrained from the trouble and expense of obtaining a copy of said complaint and examining the file thereof to ascertain all its contents and let the said suit go to judgment by default". A personal judgment therein was entered against these plaintiffs for the full amount of the mortgage indebtedness, together with attorneys' fees, costs and disbursements. Thereafter the mortgaged property was sold for less than the amount of that judgment, and the deficiency therefrom resulting is now an amount in excess of $600.
The plaintiffs further allege that they had refrained from obtaining a copy of the complaint or examining the court records because of their assumption that since Rudolph Janesch knew that they had not agreed to pay the indebtedness "he would not seek in said suit nor take judgment therein for anything more than he was entitled to seek and take; and that the said plaintiffs did so refrain from such inquiry and permitted the said suit to go to the judgment aforesaid solely upon the reliance then placed upon the aforesaid disclosure, statement and demand for agreement to assume, pay and become personally liable for the aforesaid mortgage indebtedness, as hereinabove alleged".
After setting forth the facts above noted the second amended complaint proceeds as follows:
"... that by the aforesaid disclosure of knowledge, demand for assumption of personal liability, the general attitude, demeanor and expressions in manner of statement used by said Rudolph Janesch at the aforesaid times so short in time before beginning such foreclosure, which in effect were tantamount and equivalent to a direct, clear and certain statement and promise to plaintiffs that in such foreclosure suit he would not seek nor cause to be entered therein a judgment that would be against them for personal liability or for the recovery from them of any money payment whatsoever, including costs, disbursements; that the plaintiffs had a right to rely and did so rely upon the aforesaid statements and promise so made by him as aforesaid, and so relying refrained from preventing the entry of the aforesaid judgment in the said respect of personal money judgment against them."
The pleading quoted concludes with allegations that the plaintiffs...
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