Wilmer v. Placide

Stockbridge, J., delivered tbe opinion of tbe Court. Tbis is tbe fourth time tbat tbis ease in some aspect of it bas been before this Court. Tbe first time was in Wilmer v. Placide, 118 Md. 305, and it is with tbe case then presented tbat tbe present appeal is most intimately connected. Tbe full record of the facts contained in tbe opinion prepared by Judge Pattison in tbat case renders a repetition of them entirely unnecessary. In tbe present appeal a bill bas been filed in tbe Circuit Court of Baltimore City to vacate and set aside tbe decree entered in tbe case mentioned, and for various other incidental matters of relief, and reciting with some detail tbe prior litigation. A demurrer was interposed, which upon bearing was sustained, with leave to amend within a limited time, failing in which tbe bill was to be dismissed. Eor all practical purposes tbe bill is one under which tbe complainant seeks to obtain a retrial of tbe questions which were involved and bad been passed upon in tbe case reported in 118 Md., and tbe grounds upon which tbis was asked to be done were, first, fraud; and second, newly discovered evidence. Tbe fraud alleged in tbe present bill is said to consist in perjured evidence in tbe trial of tbe first cause upon a number of material points, and tbe allegation as to'newly discovered evidence, so far as is disclosed by tbe bill, consiste in tbe discovery ,of certain witnesses, who it is, averred would contradict this perjured evidence, and tbat such witnesses were beyond tbe reach of tbe complainant, or tbat be was ignorant of tbe testimony which they could give, at tbe time of tbe prior trial. Elaborate briefs have been filed upon both sides, but tbe case presented is one to be readily disposed of. As to tbe allegation tbat tbe decree now sought to be set aside was obtained by perjured testimony, in the view of tbis *341 Court it falls directly, under the rule as laid- down in the case of Md. Steel Co. v. Marney, 91 Md. 360. In that case this Court cited at length, and adopted as the law of Maryland, the rule as announced in Pico v. Cohn, 91 Cal. 133. A full collection of the cases upon both sides of this question will be found in an elaborate note to'the case of Pico v. Cohn, in 25 Am. State Rep., beginning on page 165. See also Steen v. March, 132 Cal. 617; Holton v. Davis, 108 Fed. 150; Bradbury v. Wells, 16 L. R. A. (N. S.) 242, and note in Bleakley v. Barclay, 10 L. R. A. (N. S.) 230. Also extensive note in Little Rock & F. S. Ry. Co. v. Wells, 54 Am. State Rep. 219, 233. So firmly is the rule settled that it has been adopted by various text liters. Thus in- 2 Freeman on Judgments, sec. 489, it is said: “The procuring of a judgment by perjury or subordination of perjury is doubtless a fraud, and such a fraud as would induce equity to grant relief were it not for the fact that its existence can rarely or never be asr certained otherwise than by trying anew an issue already tried in the former action. Whenever an issue exists in any action or proceeding, each of the parties should anticipate that his adversary will offer evidence to support his side of it, and should be prepared to meet such evidence with counter proofs. Where he has an opportunity to do this, -and does not avail himself of it, or though availing himself of it, is unable to-overcome the effect upon the Court or jury of the evidence offered by his adversary, he cannot, in effect, obtain a retrial of the issue before another tribunal by charging that the judgment against him was procured by fraud.” And for this statement a long list of authorities is cited. In 6 Pomeroy’s Equity, sec. 649, it is said, that perjury-is a fraud, but it does not prevent an adversary trial, and the fraud requisite must be such as prevents the party from having an adversary trial. “This rule seems harsh for often a party will loose valuable rights because of the perjury of his adversary. However, public policy seems to demand that there be an end to litigation.” *342 Instances of the fraud, for which the reopening of a case will be granted are, keeping the opposing party away from the Court; a false offer of compromise; where a defendant never had any knowledge of the suit, as in the Foxwell case, 122 Md. 263; or where an attorney without authority assumes to represent a party. In Payne v. Payne, 97 Md. 681, the doctrine is also recognized, and authorities might he multiplied almost indefinitely to the same effect. The appellee has cited a number of cases in support of the contention that the perjury alleged amounted to a fraud, for relief from which the case should be re-opened and tried anew. Most of the' cases' cited are clearly distinguishable from this. Eor example, in the case of Cox v. Bennett, 123 Md. 356, the fraud relied upon was that in the application to take up certain bottoms under the then existing oyster law, they had been described as barren when they were not such in fact, and known tO‘ the petitioners not to have been such; but in that case there had been no trial had or judgment or decree entered. The proceeding was an initial proceeding to set aside the grant of the bottom in question, as a “barren bottom.” In Coan v. The Con. Gas Co., 126 Md. 506, there was a bill to set aside á deed, which it was alleged had been procured by misrepresentation. The misrepresentations alleged were held to present a case of fraud, if properly established by proof; but in this case also there had been nothing to prevent an adversary trial. Graver v. Faurot, 76 Fed. 257, was cited as supporting the contention of the appellant, and quite a number of other cases to the same effect will be found collected in the notes already referred to in 25 Am. State Rep.; 54 Am. State Rep.; 10 L. R. A. (N. S.) and 16 L. R. A. (N. S.), but they are at variance with the great weight of opinion in. this country, and the rule as laid down in this State. Nor is the position of the complainant any better with regard to the alleged newly discovered evidence. His bill sets out with some particularity the nature of the evidence *343 which he expects to be able to introduce under this head, but that evidence consists in what would amount to a contradiction of the appellee’s evidence given in the first appeal, and in deciding the case reported in 118 Md., Judge Pattison, speaking for this Court, said: “As we have reached our conclusion almost exclusively upon the conceded testimony in the case,” it was deemed unnecessary to pass upon certain exceptions to the evidence. Since, therefore, the original determination was arrived at, almost if not entirely, exclusive of, and apart from the alleged perjured testimony, it is impossible to see how additional evidence to sustain an allegation of perjury could produce any different result. What has been said is not to be understood as implying any sanction or intimation upon the part of this Court that an allegation of newly discovered evidence would not under any circumstances afford sufficient ground for sustaining a bill of this character. It has been referred to merely to show that if all that is claimed for it, is conceded to be true, still there was no error in the ruling of the lower Court in sustaining the demurrer to the bill of complaint, and the bill should be and is hereby dismissed, with costs. Order affirmed, and bill dismissed with costs.