Tuttle v. Tuttle
| Decision Date | 28 October 1920 |
| Court | North Dakota Supreme Court |
Rehearing denied January 21, 1921.
Appeal from an order of the District Court of Burleigh County Honorable Chas. M. Cooley, Special Judge.
Affirmed.
Order affirmed, with costs.
Leslie A. Simpson and S.E. Ellsworth, for appellant.
It is well settled that judgments may be set aside and vacated on motion made in the original action, and such has been the practice generally in such cases. Beach v. Beach, 6 Dak. 371, 40 N.W. 701; Gaar, S. & Co. v. Spaulding, 2 N.D. 420; Yorke v. Yorke, 3 N.D. 343, 55 N.W 1095; Nichells v. Nichells, 5 N.D. 125, 64 N.W. 73.
Fraud as other facts, may be established by a preponderance of the evidence. While a preponderance of evidence is required to sustain the burden of proof, a preponderance is sufficient, and proof beyond a reasonable doubt is not necessary." 20 Cyc. 121, notes 15, 16; 17 Cyc. 760, 761.
A proceeding or action in equity to cancel a contract implied by fraud is governed by the same principles which apply to a similar action to vacate a decree. 20 Cyc. 87, 91; Dennie v. Harris (Iowa) 153 N.W. 343; Haverty v. Haverty (Kan.) 11 P. 364.
Yorke v. Yorke, 3 N.D. 343, 55 N.W. 1095.
"Equity will restrain the enforcement of a judgment which was unjustly obtained by means of a conspiracy or fraudulent collusion." 23 Cyc. 1027.
"The district court, being a court of general jurisdiction, can, in a case of equity, where fraud and collusion are charged against a judge in entering an order or decree, review the same and annul it, if the facts justify such a conclusion." Sanford v. Head & Merrit, 5 Cal. 297; Stokes v. Knarr, 11 Wis. 392.
Lawrence & Murphy and Edward Engerud, for respondent.
"A charge of fraud in obtaining a judgment of divorce must, in order to sustain a bill in equity to set it aside, be established by the clearest and most satisfactory evidence." Whittaker v. Whittaker, 151 Ill. 266, 37 N.E. 1077; Whiting v. Whiting, 114 Mass. 494; Holbrook v. Holbrook, 114 Mass. 568; Watkinson v. Watkinson, 68 N.J.Eq. 632, 69 L.R.A. 397, 60 A. 931, 6 Ann. Cas. 326; Wiemer v. Wiemer, 21 N.D. 371, 130 N.W. 1015.
"A burden rests upon whoever seeks to set aside a judgment or decree, of proving facts and establishing grounds sufficient to warrant the court in annulling it." Waldron v. Waldron, 76 Ala. 285; Corney v. Corney, 108 Ark. 415, 159 S.W. 20; Re James, 99 Cal. 374, 37 Am. St. Rep. 60, 35 P. 1122; Penn v. McGhee, 6 Ga.App. 631, 65 S.E. 686; Van Sickle v. Harmeyer, 172 Ill.App. 218; Ellis v. Ellis, 61 Iowa 644, 17 N.W. 28.
This is an appeal from an order made by Judge Cooley refusing to vacate a judgment of divorce. It was duly given twelve years ago, and under it the defendant has been receiving $ 300 a month, so she has now received about $ 40,000 under the judgment she seeks to vacate. She appealed from the judgment and the appeal was dismissed, not on any technicality, but on a showing that she had then received a large sum of money under the judgment. Tuttle v. Tuttle, 19 N.D. 748, 124 N.W. 429. The decision of this court is signed by Justices B. F. Spalding, C. J. Fisk, John Carmody, and D. E. Morgan. The last two justices are now dead. Judge Winchester, who gave the decision, is dead. Several of the distinguished attorneys who took part in the trial are dead. The death roll includes Mr. Cochrane, who was attorney for defendant; and, on very dubious affidavits imputing bribery to attorney Cochrane and the late Judge Winchester, the defendant moves to vacate the judgment. If the motion were to prevail, then, in twelve years hence, when some of the present judges may be no more, there might be a similar motion to vacate any decision by this present court.
In November, 1907, nearly thirteen years ago, when the plaintiff was fifty-nine and the defendant sixty-three years, this action was commenced. From the complaint and the answer it appears that each party charged the other with cruelty and desertion. On the trial of this suit both parties were represented by distinguished counsel and both parties were present and testified. In all, sixteen witnesses testified. The testimony taken before Judge Winchester covers 356 typewritten pages, the depositions, 165 pages, and then there are numerous exhibits. To attempt a statement of the testimony would be an act of folly. Judge Cooley has found that the judgment is well sustained by the evidence, and the writer is well satisfied that the decision of Judge Winchester is in accordance with the testimony and that it is in all respects just and righteous.
The motion is based on several dubious affidavits imputing bribery to Judge Winchester, and attorney Cochrane. If the judgment was wrong and contrary to the evidence, the remedy of the plaintiff was by an appeal within a year, and not by a motion after the lapse of twelve years and after receiving $ 40,000 on the judgment. The motion is based on affidavits written by counsel, subscribed and sworn to by the affiants. Such affidavits are the weakest kind of evidence. They have little or no force when they relate to transactions long past, to transactions with deceased persons, or to matters not susceptible of proof to the contrary.
The principal affidavit is made by Mr. Pettibone. It avers that pending the suit on different occasions Tuttle stated that it was his intention to bribe W. F. Cochrane, one of defendant's attorneys; that Tuttle showed him (Mr. Pettibone) a roll of currency, $ 1,500, which he said he was going to give Judge Winchester for campaign purposes. The affidavit avers that Pettibone saw Tuttle enter the judge's chambers and there remain with the judge for half an hour; that Tuttle stated to him that he had delivered the roll to the judge; that W. F. Cochrane said to Pettibone that Tuttle should have given him $ 10,000 for his action in the divorce suit. The conclusion of the affidavit is that affiant is not in any manner interested in the suit, but desires to see justice done. To give credit to the affiant we must conclude that the desire to see justice done was very tardy and that Judge Winchester, attorney Cochrane and Mr. Tuttle were fools as well as knaves.
Mrs. Tuttle makes several affidavits. She avers that she did not know of the bribery until January, 1919, when it was disclosed to her by Mr. Pettibone.
Knappen, editor of a newspaper, makes affidavit in regard to conversations with Tuttle concerning the divorce matter in 1908 and 1919. In this busy world, ten or twelve years is a long time to remember casual remarks such as commonly "pass in at one ear and out at the other." Who can remember even the text from which his pastor preached ten years ago?
George Hogue makes affidavit that in October, 1908, Tuttle tried to hire him to bribe Cochrane by offering him $ 10,000 to arrange the record so that in case of an appeal Tuttle would be sure to win. And that during 1908, he, George Hogue, took a prominent part assisting Tuttle in his campaign for election to the House of Representatives. How strange that a man of truth and honor should work to secure the election of a man confessedly guilty of bribery and corruption
There is no good reason for extending the opinion by a discussion of the moving affidavits. They are all alike; they are all controverted; they are all dubious and highly improbable, and if true, the facts stated do not show cause for vacating a regular judgment after such a lapse of time and after defendant has for so many years accepted the benefits of the judgment.
It is shown that in January, 1918, defendant commenced an action against the plaintiff in the district court of Burleigh county to recover about $ 480,000 ($ 300,000, with interest from January, 1909). The basis of the action is that in the divorce suit she should have recovered at least $ 300,000. Such an action, in the opinion of the writer, taken in connection with the proceedings in this case, gives to the whole a color of blackmail. It shows an attempt to extort money from the plaintiff, to force him to buy his peace by harassing him with vexatious, groundless, and expensive litigation. The judgment in the case was given after a full and fair hearing. It imports absolute validity and verity. It is not subject to a collateral attack, nor is the plaintiff subject to a suit for obtaining the judgment. Hence, no party has a right to commence or prosecute such an action.
The order appealed from is affirmed, with costs.
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