De Sota Coal Min. & Development Co. v. Hill

• Citation: 69 So. 948,194 Ala. 537
• Decision Date: 30 June 1915
• Docket Number: 101
• Court: Supreme Court of Alabama
• Parties: DE SOTA COAL MINING & DEVELOPMENT CO. v. HILL et al.

69 So. 948

194 Ala. 537

DE SOTA COAL MINING & DEVELOPMENT CO. v. HILL et al.

No. 101

Supreme Court of Alabama

June 30, 1915

Rehearing Denied Nov. 18, 1915

Appeal from City Court of Birmingham; H.A. Sharpe, Judge.

Bill by the De Sota Coal Mining & Development Company against Jim Hill and another, to enjoin the collection of a judgment, and for general relief. Decree for respondents and complainant appeals. Affirmed.

For former appeal see De Sota Coal Mining & Development Company v. Hill, 188 Ala. 669, 65 So. 988, where it was held that the bill was not sufficient against demurrer to invoke the jurisdiction of equity. As amended, the bill now charges that the judgment was the same--

"by fraud and upon perjured testimony which orator was unable to rebut on the trial of said cause at law, and without fault or negligence on its part."

Plaintiff was injured while working in defendant's coal mine, and the gravamen of the charges laid in counts 1, 6, 7, and 8 of the complaint on which the judgment was rendered, which is here sought to be enjoined, was that defendant negligently employed plaintiff, then 13 years of age, to work in said mine in violation of the provisions of section 1035, Code 1907. It is alleged that:

"Plaintiff's uncle and next friend in the suit had the custody of plaintiff after the death of his parents, and that the representative of complainant in charge of the investigation pending the suit at law, and before the case was tried, went to see said Hill, the uncle, for the purpose of ascertaining the age of plaintiff; that in response to an inquiry made to him, the said H.J. Hill then and there stated to said representative that the boy was under 14 years of age, and produced and exhibited to him a family Bible purporting to show the age of plaintiff to be under 14 years of age. *** complainant's representative, acting upon the general and common acceptance of the truthfulness of family Bible entries of births of children in the family, accepted said entries as genuine and truthful, and was thereby deceived and lulled into the belief that plaintiff was under 14 years of age at the time of his said injury, when in fact said plaintiff was over 14 years of age at that time, and when in fact said Bible entry *** was false."

It is further alleged that the said H.J. Hill, knowing the difficulties in the way of complainant's representatives for finding out the truth, "took advantage of the situation and exhibited the false Bible entry *** which apparently at the time was the best and only available evidence of the fact, and the said H.J. Hill made the false statement to complainant's representative for the purpose of deceiving him, and for the purpose of inducing him not to make any further effort to ascertain the date of the birth of plaintiff," and that, relying upon the truth of the entry and statement of said Hill, both being false, he was lulled into inaction, and was caused to desist in his further undertaking to find testimony, as subsequent development showed could have been found, to disprove the alleged fact that plaintiff was under 14 years of age when injured, upon which the recovery of the judgment was had. It is further alleged that complainant became suspicious of the genuineness and truthfulness of the entry when it was placed in evidence on the trial, it then appearing from inspection that the entries of the births of the three older children, including plaintiff, were made with the same pen and with the same ink that it became known on the trial that plaintiff was born in a remote, rural district in the state of Arkansas, where said H.J. Hill then resided also; that immediately after plaintiff's judgment was recovered, complainant's agent set on foot investigations in Montgomery county, Ark (detailing them) which finally resulted, just after complainant's motion for new trial had been overruled, in the discovery of six witnesses who knew the age of plaintiff to have been over 14 at the time of his injury and who would testify to that fact. The affidavits of these alleged witnesses to that effect are made exhibits to the bill. The bill contains these further allegations:

"That complainant's representative was unable to ascertain after diligent search the age of plaintiff, except as stated by his said uncle, and as shown by the Bible entry though he undertook to do so," and, "Complainant being unable to ascertain the age of plaintiff, except as averred above went to trial in said cause, believing and relying upon the statements made to its representative by said Hill, and believing and relying upon the truthfulness of the Bible entry."

The demurrers to the bill challenges its equity, and also the sufficiency of its allegation of adversary fraud, and of diligence on the part of complainant in defense of the suit at law. These demurrers were sustained, and complainant, refusing to amend further, appeals.

John R. Tyson, of Montgomery, and J.T. Stokely, of Birmingham, for appellant.

James M. Hanby and Allen, Fish & Townsend, all of Birmingham, for appellees.

SOMERVILLE J.

In the exercise of its undoubted jurisdiction to set aside judgments at law for fraud, chancery has always deemed it inexpedient, if not impracticable, to circumscribe the area of justiciable fraud with a boundary that is fixed and inflexible. Hence it is that, though general rules of limitation have been formulated and everywhere sanctioned, yet occasional aberrations from these settled rules are to be met with in the exercise of this power by most of the courts of this country. Mr. Pomeroy justly declares that:

"The ground for the exercise of this jurisdiction is that there has been no fair adversary trial at law. Consequently a distinction is made between fraud, accident, mistake, and the like, relating to the subject-matter of the action, and similar elements relating to the conduct of the suit. Fraud relating to the subject-matter is not of itself sufficient ground for relief." 6 Pom.Eq.Jur. § 648.

So it is said by Mr. Freeman, a profound student of this subject, that:

"It is only fraud in the management of the action or proceeding, and by which the complainant was prevented from properly presenting and establishing his cause of action or defense, which may be a ground for relief in equity." Note to Little Rock, etc., Ry. Co. v. Wells, 61 Ark. 354, 33 S.W. 208, 30 L.R.A. 560. 54 Am.St.Rep. 218, 232.

The subject has been repeatedly discussed in the decisions of this court, and it is now thoroughly settled that fraud in this connection means fraud in the very act of obtaining the judgment, or in its concoction; and hence it must be extrinsic or collateral to the matter which was tried and determined by the judgment in question. Hogan v. Scott, 186 Ala. 310, 65 So. 209; Hardeman v. Donaghey, 170 Ala. 362, 54 So. 172, wherein numerous authorities are cited and discussed. This rule, though of universal recognition, has not always been consistently applied, and there has been some difference of opinion as to when specific frauds are to be regarded as extrinsic and collateral to the subject-matter of the suit, and when they do not affect the trial in such sense as to aid in the procurement or concoction of the judgment. See Mr. Freeman's note to the leading case of Pico v. Cohn, 91 Cal. 129, 25 P. 970, 27 P. 537, 13 L.R.A. 336, 25 Am.St.Rep. 165, 167. In the note in 54 Am.St.Rep. 218, 227, this author says:

"Here, the distinction between a new defense and new evidence must be kept in mind, for while isolated cases may be found indicating that the discovery of new evidence merely may be a ground of relief in equity, the general rule is that if the defendant knew of the defense before the entry of judgment against him, it was his duty, not only to interpose it, but to employ all lawful methods, whether legal or equitable, of procuring the evidence necessary to establish it." (Italics supplied.)

In the instant case, the complaint itself warned the defendant (complainant here) that a vital and decisive issue in the case was whether or not the plaintiff was under or over 14 years of age at the time of his injury, and inevitably suggested the defense, viz., a simple negation of the affirmative allegation of the complaint. This was the sole issue upon which the case was tried before the jury on the defendant's general denial, and on this issue the verdict was returned and the judgment rendered. The defendant knew that his defense must lie solely in a denial of this allegation, which, if established by the plaintiff, would of necessity result in a judgment in his favor. In such a state of the pleadings, and upon such a trial, it is somewhat difficult to understand how the defendant could have--

"gone to trial believing and relying upon the statement made to its representative by said H.J. Hill, and believing and relying upon the truthfulness of the Bible entry." The proposition is manifestly inconsistent with the record.

Conceding, without deciding, that a plaintiff's false answers to inquiries made by the defendant, affirming the existence of a vital and decisive fact upon which he seeks a recovery, and supported by a false document exhibited to the defendant, all of which is done knowingly and falsely to deceive the defendant and induce him to forego further inquiry as to the existence vel non of that fact, and which actually achieves that desired result, is a fraud which is extrinsic and collateral to the cause of action, and cognizable by a court of chancery as a basis for relief against a resulting judgment for the plaintiff, nevertheless, we are clearly of the opinion that such alleged fraud is not available to this complainant under the allegations of its amended bill of complaint.

We note in passing that the bill...