Ross v. . Wood

Allen, J. The rule as stated by Ch. Kent in Foster v. Wood’ (6 J. C. R., 87), is, that chancery will not relieve against a judgment at law on the ground of its being con- • trary to equity, unless the defendant in the judgment was ignorant of the fact in question pending the suit, or it could not have been received as a defense, or unless he was prevented from availing himself of the defense by fraud or accident, or the act of the opposite party, unmixed with negligence or fault on his part. The fraud which will justify equitable interference in setting aside judgments and decrees must be actual and positive, and not merely constructive. It must be that which occurs in the very concoction or pro-: *11 curing of the judgment or decree, and something not known to the opposite party at the time, and for not ¡mowing which he is not chargeable with negligence. (Patch v. Ward, L. R, 3 Ch. App., 203; Story’s Eq. Jur., §§ 1,581, et seq.; Dobson v. Pearce, 2 Kern., 156; Michigan v. Phoenix Bank, 33 N. Y., 9; Fonb. Eq., 27, 642, notes.) Belief can only be granted upon some new matter of equity not arising in the former case. Equity will not take cognizance on the same grounds of the very point which another court of competent authority in the case has considered and decided. Per Ch. Kent. (Simpson v. Hart, 1 J. C. R., 91.) Lord Redesdale, in Bateman v. Willoe (1 Sch. & Lefroy, 201), says: “I do not know that equity ever does interfere to grant a trial of a matter which has already been discussed in a court of law, a matter capable of being discussed therein, and over which the court of law had full jurisdiction.” This is the settled doctrine of courts of equity. (Williams v. Lee, 3 Atk., 225; Le Guen v. Gouverneur, 1 J. Cas., 436.) And the rule should not be relaxed to retry questions deliberately tried and adjudicated by courts of equity having concurrent jurisdiction of the subject-matter with that in which the action to be relieved from the judgment or decree is brought. Lord Cairns, in Patch v. Ward, supra, says: “ The insisting upon rights which, upon a due investigation of those rights, might be found to be over-stated or over-estimated, is not the kind of fraud which will authorize the court to set aside a solemn decision which has assumed the form of a decree, signed and enrolled.” The plaintiff seeks in this action to retry in a different forum an issue of fact once determined by the verdict of a jury, and the judgment of a court of competent jurisdiction based thereon. It is not averred in the complaint that the former trial was not in all respects fair and impartial; that the verdict was not in harmony with the evidence; that the plaintiff was surprised by the testimony in behalf of his adversary in that action; that he was prevented or hindered in any way or by any means from fully and fairly litigating *12 the action, and giving all the evidence which could then have been or can now be given; or that he did not then have the benefit of all the evidence then or now existing. It is not alleged that any evidence material to the contention has been discovered since the former trial, or that the testimony can be materially changed upon a retrial. The general averment of a combination and conspiracy by the defendants to obtain the judgment without averring by what acts the end was to be accomplished, or that any illegal acts were done, or that the plaintiff was damnified or his rights affected by the conspiracy, or that the result was brought about by means of the combination, does not aid the plaintiff. The plaintiff by this action merely asks another court of concurrent jurisdiction with the City Court of Brooklyn, in which the judgment sought to be vacated was given, to review the evidence as it shall be repeated, and annul that judgment upon the ground that the evidence upon which it was pronounced was false, and ought not to have been credited. There was no suppression of evidence by the plaintiff in the former action, or ignorance on the part of the present plaintiff of any fact material to the controversy, and all the evidence which is now within his reach was produced or might have been produced on that trial, and was equally competent then as now. The substance of the complaint, the foundation of the demand for relief, is that the court and jury upon the former trial, upon a conflict of evidence, gave credit to the evidence on the part of his adversary then and now claimed to be false, rather than to the contradictory and conflicting evidence. This is no ground for relief by suit in equity. The only remedy in such a case is by application to the same court for a new trial. The judgment must be affirmed. All concur. Judgment affirmed.