Sutter v. Easterly

• Decision Date: 04 September 1945
• Docket Number: 39477
• Parties: Orval C. Sutter, Public Administrator of St. Louis County, Missouri, in charge of the Estate of L. H. Dodd, Deceased, and American Institute of Steel Construction, a Corporation, v. Gertrude Easterly, W. Scott Peters, Exchange National Bank of Jefferson City, Missouri, a Corporation, as Executor of the Last Will and Estate of David W. Peters, Deceased, and Harvey B. Cox, Appellants
• Court: Missouri Supreme Court

189 S.W.2d 284

354 Mo. 282

Orval C. Sutter, Public Administrator of St. Louis County, Missouri, in charge of the Estate of L. H. Dodd, Deceased, and American Institute of Steel Construction, a Corporation, v. Gertrude Easterly, W. Scott Peters, Exchange National Bank of Jefferson City, Missouri, a Corporation, as Executor of the Last Will and Estate of David W. Peters, Deceased, and Harvey B. Cox, Appellants

No. 39477

Supreme Court of Missouri

September 4, 1945

Appeal from Circuit Court of City of St. Louis; Hon. C. B Williams, Judge.

Affirmed.

Harvey B. Cox, W. Scott Peters and Roberts P. Elam for appellants.

(1) There was no fraud in the very procurement of the judgment -- extrinsic fraud -- in Mrs. Easterly's action. The question of the truth of Schilling's testimony at the trial of Mrs. Easterly's action, was tried out and determined in that action. Even if such testimony were false that would not be sufficient to warrant a setting aside of the judgment in that action. United States v Throckmorton, 98 U.S. 161, 25 L.Ed. 93; Lieber v. Lieber, 239 Mo. 1, 143 S.W. 458; Wabash R. Co. v. Mirrielees, 182 Mo. 126, 81 S.W. 437. (2) The burden was upon the plaintiffs to establish the fraud charged to have been practiced upon Dodd and the American Institute and the court, in the procurement of Mrs. Easterly's judgment, by evidence so strong, cogent and convincing as to leave no room for reasonable doubt of its existence in the minds of the chancellor. Merely substantial evidence is insufficient. Terminal Railroad Assn. of St. Louis v. Schmidt, 349 Mo. 890, 163 S.W.2d 772; Lieber v. Lieber, 239 Mo. 1, 143 S.W. 458; Elliott v. McCormick, 323 Mo. 263, 19 S.W.2d 654; State ex rel. v. Shain, 344 Mo. 891, 129 S.W.2d 1048. (3) Absent the alleged affidavit of Schilling, there is no proof whatsoever that Schilling committed perjury in his testimony in Mrs. Easterly's action. (4) Absent the alleged affidavit of Schilling, there is no proof whatsoever of any fraud or concealment on the part of attorney David W. Peters. (5) The alleged affidavit of William C. Schilling was pure hearsay evidence, was not within any exception to the hearsay rule, was erroneously admitted in evidence by the trial court, and must be wholly disregarded in considering whether plaintiffs established the fraud charged by them in connection with Mrs. Easterly's judgment. (6) The fact that Schilling's alleged statements were included in an ex parte affidavit, rather than being mere unsworn oral or written statements, does not affect their character as hearsay. Patterson v. Fagan, 38 Mo. 70; Bank of Odessa v. Jennings, 18 Mo.App. 651; 22 C.J., p. 207, sec. 168. (7) The alleged affidavit of Schilling, in several respects, does not meet the requirements of a declaration of facts against interest, so as to be admissible under the exception to the hearsay rule relating to such declarations. 31 C.J.S., p. 959, sec. 217. (8) The statements made in Schilling's alleged affidavit did not relate to facts against any pecuniary or proprietary interests of his existing at the time such statements were made. 22 C.J., p. 235, sec. 215; Penner v. Cooper, 4 Munf. 458; Smith v. Blakey, LR 2 QB. 326. (9) The circumstances under which the alleged affidavit was given by Schilling do not render it improbable that no motive to falsify existed. The facts, that the alleged affidavit was maneuvered by an insurance company adjuster, after the deaths of those who might controvert the statements made therein, to be used as the basis for the present suit in equity, and under a misrepresentation that such adjuster had documentary evidence from other witnesses to the effect that Schilling could not have been present at the collision between the Dodd and Easterly automobiles, seriously impugns the motives in making the statements contained in the alleged affidavit, and precludes its admission in evidence. Declarations against interest must be spontaneous, and made prior to the time when their use as evidence may have been in contemplation. 3 Jones' Commentaries on Evidence (2d Ed.), pp. 2075-2076, sec. 1128; Jelser v. White, 183 N.C. 126, 110 S.E. 849. (10) The alleged affidavit of Schilling was not competent as an independently relative statement in connection with showing diligence on the part of Dodd and the American Institute. In any event, if it were admitted for that limited purpose, the statements in the alleged affidavit could not be considered as evidence of the facts recited therein. (11) Even if the alleged affidavit of Schilling were admissible on the ground that it contained declarations of fact against interest, it was not such proof of the facts recited therein as would meet the degree of proof required to set aside the judgment in Mrs. Easterly's case. Such form of proof is a very inferior grade of evidence, not favorably regarded, and insufficient to meet the requirements of proof so clear, cogent and convincing as to leave no reasonable doubt about the facts. Collins v. Harrell, 219 Mo. 279, 118 S.W. 432; Phillips Petroleum Co. v. First Natl. Bank of Pampa, 64 S.W.2d 1057; 22 C.J., pp. 231-232, sec. 209; 31 C.J.S., p. 959, sec. 217. (12) The trial court erred in finding, adjudging and decreeing that the judgment in Mrs. Easterly's action be set aside and vacated upon the grounds that plaintiffs had been deprived of their legal rights by "an accidental combination of circumstances" beyond their control, and without any negligence on their part, because the evidence does not meet the required degree of proof of the facts essential to such a finding. Authorities cited under points (2)-(11), supra. (13) Such a theory is inconsistent with the principal theory of plaintiffs' petition. (14) There is no showing that plaintiffs were deprived of any legal rights in the trial of Mrs. Easterly's action. (15) The evidence is conclusive that, if in fact they did not do so, Dodd and the American Institute could have tried out completely the issue of Schilling's alleged perjury in the trial of Mrs. Easterly's action.

Moser, Marsalek & Dearing for respondents.

(1) In equity suits to set aside judgments obtained at law, on the ground of fraud in the procurement, a clear distinction has always been observed between cases involving mere perjury of a witness committed at the trial at law, and cases in which the successful party in the lawsuit was guilty of fraudulent acts or concealment which prevented the opposing party from discovering and proving in the trial all the facts which should have been shown in his behalf. Cases falling within the first category are not cognizable in equity, as they involve only fraud inherent in the cause of action or defense. Cases falling within the second category involve fraud extrinsic and collateral to the issues in the original suit, and present a proper basis for equitable intervention. Dunn v. Miller, 96 Mo. 324, 9 S.W. 640; Wonderly v. Lafayette County, 150 Mo. 635, 51 S.W. 745; Chicago, R.I. & P.R. Co. v. Callicotte, 267 F. 799 certiorari denied, 255 U.S. 570, 65 L.Ed. 791; Fadler v. Gabbert, 333 Mo. 851, 63 S.W.2d 121; Link v. Link, 48 Mo.App. 345; Tapana v. Shaffray, 97 Mo.App. 337, 71 S.W. 119; Marshall v. Holmes, 141 U.S. 589, 35 L.Ed. 870; Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 88 L.Ed. 1250; Marine Ins. Co. v. Hodgson, 7 Cranch, 333, 3 L.Ed. 362; United States v. Beebe, 180 U.S. 343, 45 L.Ed. 563. (2) The foregoing rule has been applied frequently where the prevailing party, by false answers to interrogatories or similar fraud or concealment, succeeds in misleading the adverse party and thus preventing him from fully developing his case at the trial. Such conduct constitutes fraud in the procurement of the judgment, extrinsic or collateral to the issues tried in the original case. The conduct of Mrs. Easterly's attorney, in fraudulently conspiring with Schilling to give false testimony, in schooling him as a witness, in concealing all knowledge of the false witness from his clients, in standing silently by when his clients, in their depositions, denied knowledge of any witnesses other than the principals, and then springing Schilling as a surprise witness at the trial, constitutes extrinsic fraud in the procurement of the judgment, and fully supports the decree rendered below. Caldwell v. Taylor, 218 Cal. 471, 23 P.2d 758, 88 A.L.R. 1194; Graver v. Faurot, 76 F. 257; Publicker v. Shallcross, 106 F.2d 949; Stenderup v. Broadway State Bank, 219 Cal. 593, 28 P.2d 14; Moffatt v. United States, 112 U.S. 24, 28 L.Ed. 623; Oregon-Washington Nav. Co. v. Reid, 65 P.2d 664; Chicago, R.I. & P.R. Co. v. Callicotte, supra. (3) Dodd and the American Institute, through their counsel, had the right, conferred by law, to take the depositions of the Easterlys under the rules relating to cross-examination, for the purpose of discovering who were or who claimed to be the witnesses to the accident. Such depositions are in the nature of chancery practice relating to a bill of discovery, and entitle a litigant to sift the conscience of his adversary. Mrs. Easterly's attorney had no right to prevent the accomplishment of this purpose by fraud and concealment designed to cover up the false witness. Secs. 1889, 1894, R.S. 1939; Eck v. Hatcher, 58 Mo. 235; Ex Parte Brockman, 233 Mo. 135, 134 S.W. 977; Devoy v. St. Louis Transit Co., 192 Mo. 197, 91 S.W. 140; State ex rel. Bressman v. Theisen, 142 S.W. 1088; Security State Bank v. Peck, 159 Mo.App. 171, 140 S.W. 762; Aaron v. Met. Street Ry. Co., 159 Mo.App. 307, 144 S.W. 145. (4) The rule that equity will not grant relief from a judgment on grounds which were tried and determined in the law action assumes that there has been a trial in which the respective parties have had an opportunity fully to present their evidence. ...