Vandeventer Trust Co. v. Western Stoneware Co.

• Decision Date: 18 April 1917
• Citation: 193 S.W. 995,197 Mo.App. 132
• Parties: VANDEVENTER TRUST COMPANY, Appellant, v. WESTERN STONEWARE COMPANY, Respondent
• Court: Missouri Court of Appeals

193 S.W. 995

197 Mo.App. 132

VANDEVENTER TRUST COMPANY, Appellant, v. WESTERN STONEWARE COMPANY, Respondent

Court of Appeals of Missouri, St. Louis

April 18, 1917

Original Opinion of March 6, 1917, Reported at: 197 Mo.App. 132. [Copyrighted Material Omitted] [Copyrighted Material Omitted]

197 Mo.App. 132 at 148.

Motion for rehearing overruled.

ALLEN J. Reynolds, P. J., concurs; Becker, J., not sitting.

OPINION

ON MOTION FOR REHEARING.

ALLEN J.

Appellant asks us to grant a rehearing on the ground that the court, in its opinion heretofore filed, assumed that counsel representing appellant (then garnishee) in the original proceeding, "had, at the time they filed a motion to set aside the judgment by default, knowledge of the fact that counsel for plaintiff in said case had, in presenting its testimony for the purpose of obtaining judgment by default, suppressed the debit side of the statement given to them by the counsel for the Trust Company;" whereas it is said that the record nowhere shows that at the time of the hearing on the motion to set aside the default judgment, counsel then representing appellant had knowledge of the fact that the debit side of the aforesaid statement or account had been suppressed.

As to this phase of the case it is only necessary to say that the act of withholding from evidence the debit side of the account mentioned--the propriety of which we do not pass upon--could not, we think, under any view of it, constitute such fraud as will justify a court of equity in setting aside the judgment. "A judgment of a court of competent jurisdiction will not be set aside in equity because it was rendered upon a fraudulent cause of action, forged document, perjured testimony or any other matter to which full defense might have been interposed on the trial, unless such defense was prevented by fraud of the party who recovered the judgment. [McDonald v. McDaniel, 242 Mo. 172, 145 S.W. 452, and authorities cited, 145 S.W. 452; Gallagher v. Chilton et al., 192 S.W. 409, l. c. 412; Wolf v. Brooks, 177 S.W. 337; Railroad v. Mirrieless, 182 Mo. 126, 81 S.W. 437; Fears v. Riley, 148 Mo. 49, 49 S.W. 836; Hamilton v. McLean, 139 Mo. 678, 41 S.W. 224.]

In United States v. Throckmorton, 98 U.S. 61, 25 L.Ed. 93, quoted in Hamilton v. McLean, supra, l. c. 687, it is said:

"The doctrine is equally well settled that the court will not set aside a judgment because it was founded on a fraudulent instrument, or perjured evidence, or for any matter which was actually presented and considered in the judgment assailed. . . . That the mischief of re-trying 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."

In Fears v. Riley, supra, l. c. 58, 59, it is said:

"It is the settled law in our State that in order to set aside a judgment for fraud, even in a direct proceeding, it must appear that fraud was practiced in the very act of obtaining the judgment. [Lewis v. Williams, Admr., 54 Mo 200.] It is not enough that there was a fraud in the cause of action on which the judgment is founded and which could have been interposed as a defense (unless its interposition was prevented as a defense by fraud.) [Payne v....