Mottu v. Davis

• Decision Date: 12 October 1910
• Parties: MOTTU v. DAVIS.
• Court: North Carolina Supreme Court

69 S.E. 63

153 N.C. 160

MOTTU v. DAVIS.

Supreme Court of North Carolina

October 12, 1910

Appeal from Superior Court, Edgecombe County; Guion, Judge.

Action by J. P. A. Mottu against J. A. Davis. From a judgment for plaintiff, defendant appeals. Affirmed.

A motion for new trial for newly discovered evidence will be denied if the evidence only tends to contradict or discredit a witness testifying at the previous trial.

This case was before the court at fall term, 1909, and is reported in 151 N.C. 237, 65 S.E. 969. The court then directed that an issue as to the jurisdiction of the corporation court of Manchester, Va., be submitted to the jury. After the certificate of this court had been filed in the superior court, the defendant moved to amend his answer by substituting for the fifth section the following: "The defendant is informed and believes, and so alleges, that plaintiff obtained the judgment upon fraudulent, false material, and pertinent testimony offered by him in order to secure the same, viz., that said cotton described in the complaint was actually purchased by him on defendant's account through Ladenburg, Thalman & Co. of New York, and there stored in a warehouse; that said purchase was not made by the parties with the intent that said cotton was not to be delivered, but should be settled for according to the future market, as the price should be greater or less at the time of sale; that he had not been advised by an attorney in North Carolina that he could not collect on the contracts in the state of North Carolina, but had so concluded by reading the statute himself; that he had paid to C. De Witt, his partner one-half of the amount of the alleged account, whereas defendant is informed and so believes and avers that said statements were not at the time and never had been true; that especially it is not true that plaintiff purchased the actual cotton of Ladenburg, Thalman & Co. on defendant's account and stored it in a warehouse, and that the same was purchased with intent that it should be delivered and not settled for according as the future market price should rise or fall. The defendant had no knowledge or information before the trial that plaintiff made any such claim or claims in respect to such trade and dealings, and was therefore taken by complete surprise, and was unable to meet the same, as his first information thereof was in the midst of the trial, but he believes he is now prepared to show said testimony was in fact false, and but for said false testimony plaintiff could not have secured the judgment sued on in this action." The court, over plaintiff's objection, allowed the amendment to be made by the defendant. The plaintiff at first replied to the answer, and denied the allegations of the fifth section as amended. When the case was called for trial the plaintiff demurred ore tenus upon the ground that the allegations of that section of the amended answer did not constitute a defense to the action. The court sustained the demurrer, and refused to submit the issue of fraud to the jury, and the defendant excepted. The issue as to the jurisdiction of the Virginia court was submitted to the jury and found in favor of the plaintiff. The court instructed the jury that, upon all the evidence, their answer to the issue should be, "Yes," to which charge the defendant excepted, add from a judgment upon the verdict in favor of the plaintiff he appealed.

G. M. T. Fountain, for appellant.

J. R. Gaskill, Overton Howard, and F. L. Spruill, for appellee.

WALKER J.

The defendant has not in the amendment of his answer presented a case which entitles him to the favorable consideration of the court. It has been held by many courts, and the text-writers seem to adopt the principle as settled by the great weight of authority, that perjury, being intrinsic fraud, is not ground for equitable relief against a judgment resulting from it but the fraud which warrants equity in interfering with such a solemn thing as a judgment must be such as is practiced in obtaining the judgment, and which prevents the losing party from having an adversary trial of the issue. Perjury is a fraud in obtaining the judgment, but it does not prevent an adversary trial. "The losing party is before the court, and is well able to make his defense. His opponent does nothing to prevent it. This rule seems harsh, for often a party will lose valuable rights because of the perjury of his adversary. However, public policy seems to demand that there be an end to litigation. If perjury were accepted as a ground for relief, litigation might be endless. The same issues would have to be tried repeatedly. As stated in a leading case: 'The wrong, in such case, is, of course, a most grievous one, and no doubt the Legislature and the courts would be glad to redress it if a rule could be devised that would remedy the evil without producing mischiefs far worse than the evil to be remedied. Endless litigation, in which nothing was ever finally determined, would be worse than occasional miscarriages of justice; and so the rule is that a final judgment cannot be annulled merely because it can be shown to have been based on perjured testimony; for, if this could be done once, it could be done again and again ad infinitum."' 6 Pomeroy's Eq. Jur. § 656, and cases cited in note; U.S. v. Throckmorton, 98 U.S. 61, 25 L.Ed. 93; U.S. v. Beebe, 180 U.S. 343, 21 S.Ct. 371, 45 L.Ed. 563. While the doctrine, as thus stated, has been adopted in many jurisdictions, this court has held that a verdict and judgment obtained by perjured testimony may, under certain circumstances, be set aside and a new trial ordered, or that relief against the judgment may be awarded in some other form. Peagram v. King, 9 N. C. 605; Dyche v. Patton, 56 N.C. 332; Burgess v. Lovengood, 55 N.C. 457. It is said, though, that this power should be exercised with extreme caution, and that the application of the doctrine, being greatly restricted, is confined to cases which present peculiar circumstances, under the maxim that the public...