McCoy v. Justice

• Decision Date: 22 October 1930
• Docket Number: 639.
• Parties: McCOY v. JUSTICE et al.
• Court: North Carolina Supreme Court

155 S.E. 452

199 N.C. 602

McCOY v. JUSTICE et al.

No. 639.

Supreme Court of North Carolina

October 22, 1930

Appeal from Superior Court, Macon County; Harwood, Special Judge.

Suit by W. L. McCoy against J. B. Justice, administrator of the estate of Perry Hyatt, deceased, and others. From a judgment dismissing the suit as in case of nonsuit, plaintiff appeals.

Affirmed.

In suit to set aside judgment, letters written to deceased husband who obtained judgment, to his wife and vice versa, regarding their separation, held privileged communications and therefore inadmissible (C.S. § 1801).

Letters passing between husband and wife procured with consent, if not privity, of wife, held nevertheless not admissible against wife individually.

See also 196 N.C. 553, 146 S.E. 214.

The suit was brought to set aside and declare invalid, on the ground of fraud and collusion, a judgment recovered against the plaintiff by Perry Hyatt, deceased.

The plaintiff is a resident of Macon county. The defendants are Ferry Hyatt's administrator, his widow, his mother, his brothers and sisters, and the sheriff of Macon county.

Perry Hyatt and Annie Hyatt were husband and wife. They were married in 1912. On August 12, 1925, Perry Hyatt, then in the employ of W. L. McCoy, plaintiff in this action, suffered personal injury which resulted in partial paralysis. He died March 24, 1927. No child was born of the marriage. Annie Hyatt became pregnant in December, 1925, and gave birth to a child in August, 1926. In June, 1926, her husband discovered her condition and she immediately left his home. On June 28 1926, Perry Hyatt instituted an action against W. L. McCoy to recover damages for criminal conversation with Annie Hyatt and the alienation of her affections. He was given a judgment which was affirmed on appeal to this court. Hyatt v. McCoy, 194 N.C. 760, 140 S.E. 807. Execution was issued and the plaintiff brought suit to set aside the judgment on the grounds above stated.

A summary of the pleadings is necessary to an understanding of the exceptions. The plaintiff alleges that Perry Hyatt and his wife, aided by the defendants, other than Caroline Hyatt and C. L. Ingram, formed a conspiracy to cheat and defraud the plaintiff, and for this purpose caused an action to be brought against him in the name of Perry Hyatt for debauching Annie Hyatt and alienating her affections; that Perry Hyatt recovered a judgment; that an action was brought by Annie, whose complaint was demurred to and held to be insufficient; that the plaintiff paid Perry and his wife, $2,000; that in pursuance of their conspiracy these two agreed to separate and live apart until Perry's suit was finally disposed of; that there was a pretended but not an actual separation between them; that Perry provided for his wife money, board, and clothing; that her affections were never alienated; that some of the defendants kept away from the trial three or four witnesses who were material for the defense and made arrangements with jurors to render a verdict favorable to the plaintiff in that action; that the plaintiff (McCoy) was diligent in his defense but did not prevail because of the alleged fraud and conspiracy; that he first learned of the fraud after the judgment of the superior court had been affirmed on appeal; that the allegation that Perry and his wife lived happily together was false, their marital relations having previously been disturbed by her infidelity; that two of the defendants intimidated the plaintiff's witnesses; that the plaintiff received information when Annie instituted a proceeding against the administrator for a settlement of the estate; that the alleged agreement between her and her husband was a sham; and that the allegations in Perry's complaint, as well as his testimony at the trial, were fabricated and untrue.

The answers put in issue all the material allegations relating to the alleged conspiracy, fraud, deceit, interfering with jurors and intimidating witnesses, and other allegations, the establishment of which is necessary to enable the plaintiff to recover. Annie Hyatt alleges in her answer that she does not own or claim any interest in the estate of her husband.

At the close of the plaintiff's evidence, the defendants moved to dismiss the action as in case of nonsuit. The motion was allowed, and the plaintiff excepted and appealed upon assignments of error referred to in the opinion.

A. Hall Johnston, of Asheville, Edwards & Leatherwood, of Bryson City, and Moody & Moody, of Murphy, for appellant.

Bryson & Bryson, of Bryson City, and Geo. B. Patton, of Franklin, for appellees.

ADAMS J.

This is a suit in equity brought by the plaintiff to restrain the issuance of an execution and to set aside a judgment recovered against him by Perry Hyatt, now deceased, in an action at law. The grounds upon which relief is sought are an alleged conspiracy between Perry Hyatt and his wife, aided by his brothers and sisters, who are defendants and who claim to be distributees of his estate, fraudulently to procure the judgment by perjured testimony and the creation of feigned conditions which are specifically set forth in the complaint. For this reason resort is had to the equitable jurisdiction of the court on the principle that the plaintiff's wrongs can be redressed and his rights enforced only by such remedial justice as is administered exclusively in courts of equity. It is true that if the remedy afforded at law would be incomplete or inadequate equity will always entertain jurisdiction to give relief in a case of fraud. But "fraud" is a generic term. While several definitions of the word have been given, it has often been said that no definition can be framed which will be all-inclusive and that each case must be determined on its own facts. The principle is directly applicable in the present case.

In a discussion of the conditions under which a judgment obtained by fraud may be vacated by a court of equity, Freeman, in his work on Judgments, observing the distinction between intrinsic and extrinsic fraud, remarks that ""extrinsic or collateral fraud operates not upon matters pertaining to the judgment itself but relates to the manner in which it is procured." He illustrates the definition by the following excerpt from "the oft-quoted statement of Justice Miller" in United States v. Throckmorton, 98 U.S. 61, 65, 25 L.Ed. 93: "Where the unsuccessful party has been prevented from exhibiting fully his case, by fraud or deception practiced on him by his opponent, as by keeping him away from court, a false promise of a compromise; or where the defendant never had knowledge of the suit, being kept in ignorance by the acts of the plaintiff; or where an attorney fraudulently or without authority assumes to represent a party and connives at his defeat; or where the attorney regularly employed corruptly sells out his client's interest to the other side,--these, and similar cases which show that there has never been a real contest in the trial or hearing of the case, are reasons for which a new suit may be sustained to set aside and annul the former judgment or decree, and open the case for a new and a fair hearing."

Freeman refers to perjury and false swearing as intrinsic fraud (section 1241) and says: "It must be borne in mind that it is not fraud in the cause of action, but fraud in its management, which entitles a party to relief. The fraud for which a judgment may be vacated or enjoined in equity must be in the procurement of the judgment. If the cause of action is vitiated by fraud, this is a defense which must be interposed, and unless its interposition is prevented by fraud, it cannot be asserted against the judgment; 'for judgments are impeachable for those frauds only which are extrinsic to the merits of the case, and by which the court has been imposed upon or misled into a false judgment. They are not impeachable for frauds relating to the merits between the parties. All mistakes and errors must be corrected from within by motion for a new trial, or to reopen the judgment, or by appeal.' The fraud must be in some matter other than the issue in controversy in the action. The rule that fraud, to be a ground for relief, must be extrinsic or collateral to the matter tried in the first action, is almost universally acquiesced in. It is merely an application of the general principle that equity will not interfere simply to give a second opportunity to relitigate that which has already been fully litigated." Freeman on Judgments (5th Ed.) § 1233.

The objection to relitigation rests upon solid ground. As observed by Mr. Justice Miller: "If the court has been mistaken in the law, there is a remedy by writ of error. If the jury has been mistaken in the facts, the remedy is by motion for new trial. If there has been evidence discovered since the trial, a motion for a new trial will give appropriate relief. But all these are parts of the same proceeding, relief is given in the same suit, and the party is not vexed by another suit for the same matter. So in a suit in chancery, on proper showing a rehearing is granted. If the injury complained of is an erroneous decision, an appeal to a higher court gives opportunity to correct the error. If new evidence is discovered after the decree has become final, a bill of review on that ground may be filed within the rules prescribed by law on that subject. Here, again, these proceedings are all part of the same suit, and the rule framed for the repose of society is not violated."

The principle was concisely stated in Tovy v. Young, Prec. in Ch. 193, 24 Eng. Reports, 93, in which the Lord Keeper, dismissing a bill to set aside a judgment, said "New matter may in some cases be ground for relief; but it must not be...