The Electric Plaster Company v. Blue Rapids City Township

• Decision Date: 12 February 1910
• Docket Number: 16,323
• Citation: 81 Kan. 730,106 P. 1079
• Parties: THE ELECTRIC PLASTER COMPANY, Appellant, v. BLUE RAPIDS CITY TOWNSHIP, Appellee
• Court: Kansas Supreme Court

106 P. 1079

81 Kan. 730

THE ELECTRIC PLASTER COMPANY, Appellant, v. BLUE RAPIDS CITY TOWNSHIP, Appellee

No. 16,323

Supreme Court of Kansas

February 12, 1910

Decided January, 1910.

Appeal from Marshall district court; SAM KIMBLE, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. VACATION OF JUDGMENT--Perjury. False swearing or perjury alone is not ground for vacating a judgment under the provisions of section 570 of the code of civil procedure. (Gen. Stat. 1901, § 5056.)

2. VACATION OF JUDGMENT -- Fraud Must be Extrinsic or Collateral to the Issue Involved. The fraud which will authorize a court to vacate a judgment in an action brought for that purpose under section 570 of the code of civil procedure must be extrinsic or collateral to the matter involved in the former action, and sufficient to justify the conclusion that but for such fraud the result would have been different.

3. VACATION OF JUDGMENT -- Fraud--Petition Demurrable. In an action to vacate a judgment for fraud of the successful party a petition fails to state a cause of action where it relies so lely upon the ground that the judgment was obtained upon false or perjured testimony and shows that the issue to which the alleged false testimony relates was raised by the pleadings and was tried out upon a conflict of testimony, the truth or falsity of which was necessarily determined in the former action.

4. VACATION OF JUDGMENT -- Audita Querela--Code Remedy. While the common-law writ of audita querela has become obsolete, the remedy still exists in a proper case either by motion or petition, under sections 568 and 570 of the code of civil procedure. (Gen. Stat. 1901, §§ 5054, 5056.)

W. S. Glass, H. A. Russell, and J. G. Strong, for the appellant.

E. A. Berry, W. J. Gregg, and J. D. Gregg, for the appellee.

OPINION

PORTER, J.:

The appellant brought suit to annul a judgment rendered by the district court of Marshall county, on the ground that it was obtained by fraud. The trial court sustained a demurrer to the petition, and the only question is whether the petition states a cause of action.

The judgment was rendered in an action brought against the Electric Plaster Company by Blue Rapids City township to recover $ 229.60 upon a contract entered into between the township and the company, by which the company agreed to pay a certain proportion of the interest as the same should accrue on $ 15,000 of township bonds, issued for the purpose of paying for the reconstruction of a highway washed away by the flood of 1903. It was supposed by the parties to the contract that the reconstruction of the highway would restore to the plaster company its water power, of which it had been deprived by a change in the channel of Blue river. The company set up several defenses; among them, that the contract was void as against public policy, that it lacked mutuality, and that the township had failed to restore the water power according to the contract. There was a judgment against the company, which on appeal this court affirmed. (Plaster Co. v. Blue Rapids Township, 77 Kan. 580, 96 P. 68.)

The appellee urges that the cause should be dismissed for the reason that the record discloses that since the suit was brought the appellant has satisfied the judgment complained of by payment of the same in full, with costs. Obviously, however, the main purpose of the suit was not to relieve the appellant from the payment of the comparatively small judgment involved, but to get rid of the binding force and effect of the judgment as a former adjudication, and to enable the. appellant in the future to defend against claims for further payments of interest.

One ground of demurrer is that the action is in the nature of a proceeding audita querela, which is unknown to our practice. The action commonly known as audita querela takes its name from the common-law writ which formerly issued for the purpose of affording relief from the consequences of a judgment or execution where the matter of the defense arose subsequent to the rendition of the judgment or the issue of the execution, as in cases where the judgment had been released or the execution satisfied. (4 Cyc. 1060.) The name of the proceeding is of no importance. As a substitute for audita querela our practice affords the same remedy, either by motion or petition. (McMillan v. Baker, 20 Kan. 50, 53.) While the writ itself has become obsolete, the remedy still exists in a proper case. The prayer of the petition in this case is that the judgment be vacated and a new trial granted, and the action is brought under sections 568 and 570 of the code of civil procedure (Gen. Stat. 1901, §§ 5054, 5056), upon the grounds set forth in the fourth subdivision of section 568, which authorizes the district court to vacate. or modify a judgment at or after the term "for fraud practiced by the successful party in obtaining" it. The question remains whether the petition states a cause of action. Its only allegation respecting fraud is in the following language:

"That the results and consequences arising from the floods on the -- day of July, A. D. 1907, demonstrated and proved beyond controversy or dispute that the testimony upon which the findings of the jury and of the court at the former trial were based was incompetent, false, fraudulent and untrue."

At the trial of the original action witnesses for the township testified to the character of the soil, the stability of the ground, the manner in which the work was done, and its probable permanency. Others, who qualified to some extent as expert witnesses, testified that in their opinion the reconstruction of the highway would restore to the company its water power. The principal controversy was whether the rebuilding of the roadway would have this effect and whether the work was reasonably permanent. It was contended on the appeal that the testimony offered on behalf of the township upon these issues was incompetent, but this court held it competent. (Plaster Co. v. Blue Rapids Township, 77 Kan. 580, 96 P. 68.)

The whole theory upon which the appellant seeks to maintain this action will appear from the following quotation from the brief:

"Since the expiration of the periods within which the judgment in the former case could be opened up by motion or by petition as provided by statute, nature has revealed the false and fraudulent character of the testimony in support of the contention that a reasonably permanent roadway had been constructed by the township with the funds which were realized from the sale of the bond issue, and has revealed that the work of the township did not effect a restoration of said water power, and truthful nature has proclaimed that the judgment in the former case rests upon perjury."

The remedy is specifically invoked on the ground that "the verdict of the jury was procured by false and perjured testimony, the falsity of which has since been demonstrated by the operation of nature's laws," the facts upon which the judgment was based having "been discredited and proven untrue by an act of God."

The name of no witness is mentioned. Nor is any specific fact testified to by any witness alleged to be false or his testimony perjured. By inference from the pleadings, together with the knowledge we have of the issues and character of the evidence in the former case, it may be assumed that the testimony now claimed to have been perjured was opinion evidence, based upon the general experience of the witnesses and their knowledge of local conditions. It would not be difficult, therefore, to sustain the demurrer on the ground that in pleading fraud the facts, and not mere conclusions of the pleader, must be alleged. But we prefer to place our decision upon broader grounds.

The rule established by the weight of authority is that a court of equity will not set aside a judgment at law because it was founded on perjured testimony, where the matter was actually presented and considered in the judgment assailed. The leading case in this country is United States v. Throckmorton, 98 U.S. 61, 25 L.Ed. 93, where Mr. Justice Miller, speaking for the court, said:

"The mischief of retrying every case in which the judgment or decree rendered on false testimony, given by perjured witnesses, or on contracts or documents whose genuineness or validity was in issue, and which are afterward ascertained to be forged or fraudulent, would be greater, by reason of the endless nature of the strife, than any compensation arising from doing justice in individual cases." (Page 68.)

The Throckmorton case was cited and followed in Vance v. Burbank, 101 U.S. 514, 25 L.Ed. 929, Hilton v. Guyot, 159 U.S. 113, 40 L.Ed. 95, 16 S.Ct. 139, and United States v. Beebe, 180 U.S. 343, 45 L.Ed. 563, 21 S.Ct. 371. The same doctrine is thoroughly established in the state courts. (Greene v. Greene, 68 Mass. 361; Ross v. Wood et al., 70 N.Y. 8; Friese v. Hummel, 26 Ore. 145, 37 P. 458; New York Central Railroad Company v. Harrold et al., 65 How. Pr. [N.Y]. 89; Neun v. Blackstone B. & L. Ass'n, 149 Mo. 74, 50 S.W. 436; Railroad v. Mirrielees, 182 Mo. 126; Pico v. Cohn, 91 Cal. 129; Steen v. March, 132 Cal. 616, 64 P. 994; Camp v. Ward, 69 Vt. 286, 37 A. 747; Codde v. Mahiat, 109 Mich. 186, 66 N.W. 1093; Tucker v. Stewart, 121 Iowa 714, 97 N.W. 148; Graves v. Graves, 132 Iowa 199, 109 N.W. 707.)

The general rule is that an act for which a court of equity will set aside or annul a judgment between the same parties rendered by a court of competent jurisdiction, has relation to fraud extrinsic or collateral to the matter tried by the first court, not to fraud in the matter on which the judgment was rendered. (Camp v. Ward, supra.) The cases on this question are collated in a note to Graves...