Zounich v. Anderson

• Decision Date: 03 August 1922
• Parties: PETER ZOUNICH, Respondent, v. HANS ANDERSON, Appellant
• Court: Idaho Supreme Court

208 P. 402

35 Idaho 792

PETER ZOUNICH, Respondent, v. HANS ANDERSON, Appellant

Supreme Court of Idaho

August 3, 1922

DEFAULT JUDGMENT-SETTING ASIDE FOR FRAUD-SUIT IN EQUITY-CAUSE OF ACTION-NECESSARY ALLEGATIONS.

1. "A court of equity will not restrain the enforcement of a judgment at law on the ground of perjury or fraud in obtaining it, unless such fraud is extrinsic or collateral to the question examined and determined in the action." (Donovan v. Miller, 12 Idaho 600, 10 Ann.Cas. 444, 88 P. 82 9 L.R.A., N. S., 524.)

2. Where a plaintiff or his attorney fraudulently agrees with a defendant not to try the case or take judgment, and then obtains judgment in violation of such agreement, equity will set aside the judgment.

3. In such a proceeding, the plaintiff must allege and prove all the necessary elements of actionable fraud.

APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. Robert N. Dunn, Judge.

Suit in equity to set aside judgment for fraud. Judgment for plaintiff. Reversed.

Reversed and remanded, with instructions. Costs awarded to appellant.

Edward H. Berg, for Appellant.

"The acts for which a court of equity may on account of fraud set aside or annul a judgment at law between the same parties have relation only to fraud which is extrinsic or collateral to the matter tried by the first court and not to fraud in the matter on which the judgment was rendered." (15 R C. L. 762; United States v. Throckmorton, 98 U.S. 61, 25 L.Ed. 93; 23 Cyc. 1027; Pico v. Cohn, 91 Cal. 129, 25 Am. St. 159, 25 P. 970, 27 P. 537, 13 L. R. A. 336; Donovan v. Miller, 12 Idaho 600, 10 Ann. Cas. 444, 88 P. 82, 9 L. R. A., N. S., 524; Electric Plaster Co. v. Blue Rapids City Twp., 81 Kan. 730, 106 P. 1079, 25 L. R. A., N. S., 1237; El Reno Mut. Fire Ins. Co. v. Sutton, 41 Okla. 297, 137 P. 700, 50 L. R. A., N. S., 1064.)

If respondent relies on extrinsic fraud to give the court jurisdiction, that fraud should be pleaded. The fraudulent intent must also be alleged. (12 R. C. L. 420.)

Reed & Boughton, for Respondent.

The fraud practiced must be extrinsic or collateral to the matter tried by the first court. (15 R. C. L. 762; Donovan v. Miller, 12 Idaho 600, 10 Ann. Cas. 444, 88 P. 82, 9 L. R. A., N. S., 524.)

Fraud is collateral or extrinsic when it prevents the party from having a fair trial, or from presenting his case to the court. (15 R. C. L. 763.)

When a judgment is void, by reason of fraud, it is not taken on the ground of mistake, inadvertence, surprise or excusable neglect, within the meaning of the statute; and in such a case the party injured has a right, in the original action, to have the judgment annulled by a court of equity. (California Beet Sugar Co. v. Porter, 68 Cal. 369, 9 P. 313; Baker v. O'Riordan, 65 Cal. 368, 4 P. 232.)

"While a fraudulent intent is an essential ingredient of actual fraud, and hence must generally be shown in order to maintain an action of deceit, an actual wrongful or fraudulent purpose or intent is not always essential." (Madden v. Caldwell Land Co., 16 Idaho 59, 100 P. 358, 21 L. R. A., N. S., 332.)

A default judgment procured by perjury of the plaintiff may be set aside by a court of equity for the purpose of permitting the defendant to appear in the action and litigate his rights. (Jordan v. Volkenning, 72 N.Y. 330; Laithe v. McDonald, 7 Kan. 254; Id., 12 Kan. 340.)

MCCARTHY, J. Rice, C. J., and Lee, J., concur. Dunn, J., disqualified.

OPINION

MCCARTHY, J.

Respondent brought this action to set aside a default judgment obtained against him by appellant in the district court for Kootenai county claiming that it had been obtained through a fraud perpetrated upon him by the appellant and his attorney. The judgment from which relief was sought was one for damages growing out of a cutting by respondent of timber belonging to appellant. The amended complaint upon which the judgment in the instant case was predicated alleges that the judgment complained of was rendered on the false testimony of appellant in regard to the value of the timber. It also alleges that at the time service was made upon respondent he inquired of appellant's attorney

"If the matter would be tried out in court or if judgment would be taken against him, and that he was informed by said attorney that a judgment would not be taken against him without first notifying him in regard thereto and giving him an opportunity to prepare his defense in said action; that before leaving, plaintiff herein (respondent) left with said attorney his address and requested him to write him if he should desire to try said action, or to notify him if said plaintiff, . . . . (appellant), should agree to accept the reasonable value of the timber removed from said premises; that plaintiff (respondent) waited for several months and not hearing from said attorney or said plaintiff (appellant), he wrote to said attorney asking if a settlement had been reached with said plaintiff (appellant), or if any further action would be taken in said case, but that he never received any reply to said letter, and that if he remembers correctly, he wrote to said attorney on at least one other occasion, but that he never, at any time, received any notice from said attorney or from said plaintiff (appellant), and supposed that the action had been dropped."

Appellant's demurrer to this amended complaint having been overruled, and appellant refusing to answer, a default judgment was entered against him setting aside the judgment attached. The court made findings touching on the matter of the alleged fraud, exactly in accordance with the allegations of the amended complaint above mentioned. The principal specifications of error and the only ones which it is necessary to notice are that the court erred as a matter of law in overruling the demurrer and in rendering the judgment.

So far as the alleged false testimony is concerned the complaint utterly fails to state a cause of action.

"A court of equity will not restrain the enforcement of a judgment at law on the ground of perjury or fraud in obtaining it, unless such fraud is extrinsic or collateral to the question examined and determined in the action." (Donovan v. Miller, 12 Idaho 600, 10 Ann. Cas. 444, 88 P. 82, 9 L. R. A., N. S., 524; United States v. Throckmorton, 98 U.S. 61, 25 L.Ed. 93.) The allegations of false testimony fall within the rule of Donovan v. Miller, supra, and afford no ground for vacating the judgment.

It is true that a court of equity will set aside a judgment where a plaintiff fraudulently agrees with the...