McDougall v. Walling

• Decision Date: 04 October 1899
• Parties: McDOUGALL v. WALLING et al.
• Court: Washington Supreme Court

58 P. 669

21 Wash. 478

McDOUGALL v. WALLING et al.

Supreme Court of Washington

October 4, 1899

Appeal from superior court, Snohomish county.

Action by Malcolm McDougall against N.D. Walling and another. There was a judgment in favor of defendant Swalwell, and plaintiff petitioned for a vacation thereof. The petition was denied and plaintiff appealed. Affirmed.

S. H. Piles and Donworth & Howe, for appellant.

J. A Coleman, for respondents.

REAVIS J.

Appellant filed his petition in the superior court of Snohomish county praying that a judgment recovered by respondent Swalwell against appellant be vacated on the grounds of fraud practiced by the respondent in obtaining the judgment, and because of after-discovered evidence which would have changed the result had it been produced at the trial, but which was suppressed by Swalwell. The cause has been before this court twice, reported in 15 Wash. 78, 45 P. 668, and in 19 Wash 80, 52 P. 530. A concise statement is found in the opinion on the first appeal in 15 Wash. and 45 Pac., supra, as follows: 'Appellant, McDougall, brought this action in the superior court of Snohomish county upon a promissory note executed by N.D. Walling and William G. Swalwell, payable to the order of Walling, dated April 24, 1893, and payable 90 days thereafter; said note being for the sum of $2,800, and interest at the rate of 12 per cent. per annum from date until paid. The defendant Walling made default. Respondent Swalwell answered that he executed the note solely for the accommodation of Walling, and was a surety only, all of which was known to plaintiff at the time of the indorsement and delivery of said note to him by Walling; that, after the maturity of the note, appellant entered into a definite agreement with the defendant Walling, whereby the time of payment of said note was extended, and that the agreement to extend was made without the consent of the respondent, and released him from the payment thereof. The appellant replied, denying all of the affirmative matter set out in the answer, and, the cause having been tried before a jury, a verdict was returned in favor of Swalwell. Thereafter appellant's motion for a new trial was denied, judgment entered dismissing the action as to Swalwell, and the cause appealed.' The judgment then before this court was reversed for error in instructing the jury. On March 16, 1897, the cause was tried again in the superior court, and the jury found, in response to the issue in the case, specially that respondent Swalwell did not sign the note in suit as a joint maker; that he signed it as surety only; that appellant, McDougall, at the time he bought the note, knew that Swalwell signed it as surety only; that Swalwell did not consent that Walling might obtain an extension of time on the note; that Walling did not obtain the extension on a misrepresentation or false statement that Swalwell knew of his application, and consented that the time might be extended; that Swalwell did not promise to pay the note after the extension of time had been granted; and judgment was again entered in favor of Swalwell. An appeal was again taken, which was determined, and is reported in 19 Wash. and 52 Pac., supra, and it was there observed: 'Appellant [McDougall] also maintains that the evidence does not justify the verdict, but it is sufficient to say upon this point that the evidence in the record here is substantially conflicting, and the jury found for the respondent upon all the issues submitted to it, and the superior court declined to grant a new trial upon this ground.' After the affirmance of the last judgment here, the appellant applied to this court to vacate the judgment, but was remanded to the superior court, and filed his petition to vacate the judgment upon the grounds of fraud on the part of Swalwell in procuring it, and newly-discovered evidence which would change the result. Respondent Swalwell was sworn as a witness in his own behalf at the trial, and testified as follows: 'Q. You may state, Mr. Swalwell, the circumstances under which you came to sign that note. A. Mr. Walling applied to me for a loan in April, in 1893, for the purpose of buying some Valentine scrip. I told him I did not have any money to loan, and a few days afterwards he had made a trip to Seattle, he said, and said he could raise the money if I would go his security. Said he had used my name down there, and suggested my name as security, and, after going into the matter for which he was to use to money,--explained the town-site business thoroughly,--I agreed to go his security for ninety days. Q. Did you receive any proceeds on that note? A. No, sir. Q. Did you receive any consideration from Mr. Swalwell for signing that note? A. From Mr. Walling? Q. From Mr. Walling for signing that note. A. No. sir. Q. Did you receive any consideration for [from] any one for the execution of that note? A. No, sir.' Appellant, since the final decision of the case, has discovered written evidence, which was within respondents' knowledge, tending to show that at the time the note in question was executed the money obtained upon the note was for the purpose of procuring Valentine scrip to be place upon the town site of Silverton, in Snohomish county, and that the stock of the town-site company, consisting of 499 shares, was to be held in escrow to secure and protect Sealwell as surety upon the note; and that Walling also agreed to pay Swalwell, in consideration of his becoming surety one the note, $750 in cash, or to deliver him $1,500 in stock of the company, as Swalwell might elect; and that the account of the company was to be kept in the First National Bank of Everett, of which Swalwell was president; that, in case Walling paid the note, the stock of the company should be returned to him, but, in case of his default, the stock was to be turned over to Swalwell; and it is also alleged in the petition that the stock mentioned was of a greater value than the amount due on the note.

1. The petition to vacate the judgment is presented under 2 Ballinger's Ann. Codes & St. § 5153, subd. 4. It is maintained by counsel for appellant that perjury is such fraud as warrants the vacation of a judgment obtained by a party committing it, and that the respondents committed perjury at the trial; and authorities are cited from states with statutes relating to vacations of judgment similar to that of our state. In Heathcote v. Haskins (Iowa) 38 N.W. 417, the court observed: 'That the production upon the trial of false testimony to establish a cause of action or defense would in many cases amount to such a fraud as would entitle the adverse party to a new trial or the vacation of the judgment is certainly true. This would be so if the fact of its falsity or the evidence by which the fact could be established was not discovered until after the trial or the rendition of the judgment.' But in that case the fraud was not made out to the satisfaction of the court. In Munro v. Callahan (Neb.) 75 N.W. 151 the judgment had been rendered in favor of plaintiff. After its affirmance, the defendant filed a petition to vacate the judgment on the ground that it had been obtained by the perjury of the plaintiff, and on the appeal it was said: 'Section 602 of the Code of Civil Procedure provides that a district court shall have power to vacate a judgment rendered by it, after the term at which it was rendered, for fraud practiced by the successful party in obtaining the judgment. Certainly the obtaining of a judgment by willful and corrupt perjury is obtaining it by fraud. * * *' But in this case the sole testimony was that of the plaintiff, and the judgment was obtained on her testimony alone. So of the case of Laithe v. McDonald, 12 Kan. 340. Laithe brought an action against McDonald for failure to deliver goods which he charged were received by McDonald as a common carrier, and lost through his negligence. McDonald answered by a general denial, and did not appear further in the case. On the trial, Laithe willfully, corruptly, and falsely swore that McDonald was a common carrier, and had received the...