Branham v. Boruff

Remy, J. Suit by appellant against appellee to enjoin the enforcement of a judgment on the ground that the same was obtained by fraud. Demurrer to complaint having been sustained, judgment was taken against appellant for refusal to plead further, and this appeal followed. Action of the court in sustaining the demurrer is assigned as error. The alleged fraud which is made the basis of the complaint is that, pending the action in which was taken the judgment from which relief is asked, the plaintiff in that case (appellee Boruff herein) promised appellant that no steps would be taken in the case in appellant’s absence; but that, in violation of such promise, a trial was had, and a judgment rendered against appellant, by reason of which appellant was deprived of a meritorious defense. The judgment from which relief is sought, and which is made a part of the complaint in this suit, contains a recital' that the parties appeared by counsel, and the cause being at issue was submitted to the court for *372 trial. It is not charged in the complaint that appellant’s attorney was a party to the alleged fraud. It is a well-established rule that the enforcement of a judgment will not be restrained by a court of equity for the fraud of the successful party in procuring the judgment, if the party seeking relief has been negligent or otherwise at fault. Skinner v. Denting (1851), 2 Ind. 558, 54 Am. Dec. 460; Shelmire v. Thompson (1829), 2 Blackf. 270; Duncan v. Lyon (1818), 3 Johns. Ch. 351, 8 Am. Dec. 513; 3 Pomroy, Equity Jurisp. (2d ed.) §1364; 2 Freeman, Judgments §486. In the case at bar, it cannot be said that appellant was without fault. An attorney of his own choosing was present and conducted a trial on the merits. If the attorney had not, in advance, been fully advised as to all defenses, it was the fault of appellant, and negligence, if any, on the part of the attorney in the preparation and filing of pleadings, or in the conduct of the trial, was, by imputation, appellant’s negligence. If appellant’s attorney was incompetent, his employment was the injudicious act of appellant. Sustaining demurrer to complaint was not error. Affirmed.