Springfield Traction Co. v. Dent

OPINION. NIXON, P. J. Appellant in this proceeding asserts the equitable right to set aside a final judgment of a court having jurisdiction over the person and subject-matter by collateral .attack. The legal proposition asserted by the appellant is that where a judgment is the product of false testimony adduced by the successful litigant with a full knowledge of its falsity, and especially when it is the false testimony of the litigant and is of such character as lies peculiarly within the knowledge of such litigant and is of such character as makes it particularly difficult for an adversary to discover, and the judgment is exclusively predicated on such testimony, that of itself is such fraud in procuring such decree as will warrant the vacation thereof in equity. If the action of the trial court in overruling the demurrer to the petition were not sustained and the principles contended for by appellant were recognized, the effect would be to declare as a ride of law that a plaintiff can set aside a former judgment and re-try the issues therein made by application to a court of equity. The original action was appealed to this court and an opinion rendered therein. [Dent v. Springfield Traction Co., 145 Mo. App. 61, 129 S. W. 1044]. From the opinion in that case it appears that in the original case a motion for a new trial'was filed in the trial court [232] on the ground of newly discovered' evidence in which the identical evidence (or evidence identical in character, which in the" present suit is made grounds for invalidating the judgment, was embodied in said motion for new trial. We said that on appeal (l. c. 70): “V. Another assignment is that the trial court erred in overruling the motion for new trial on the specification of newly discovered evidence. “The affidavit of counsel on this question stated that the condition of plaintiff was not attributable to the injuries complained of, but to some other cause. Affidavits of the witnesses whose testimony was desired were filed showing that they were acquainted with the plaintiff and lived in the same neighborhood; that -about two and one-half years ago, plaintiff complained of • one of her lower limbs and said that she had a great deal of trouble with her knee; that plaintiff said Several times that she was suffering from an affliction of her limb and that these complaints were made prior to the time when she was injured by the defendant. The evidence of these witnesses was discovered by the appellant soon after the trial and it was claimed that the reason why it was not discovered sooner was on account of the secretiveness of the witnesses prior to the trial and their willingness to testify afterwards. The affidavits, however, did not show that the witnesses did not disclose their knowledge of the plaintiff’s physical condition until after the trial and do not sustain the reasons assigned by counsel. Aside from the affidavit of counsel there is nothing to show that they were not ready and willing to assist the appellant before the trial as well as afterwards. The injuries claimed to have been received by respondent were made known to the appellant by her petition several months before the trial. The witnesses resided in the neighborhood of the respondent and could have been interviewed and their testimony ascertained and they could then have been [233] •compelled, to appear as witnesses if her injuries were simulated. “In response to the affidavits filed by appellant, respondent filed numerous affidavits of witnesses corroborating her statements and contradicting the statements in the affidavits filed by appellant, together with evidence showing that the general reputation for truth and veracity of each of the newly discovered witnesses was bad. “Under this showing as to the newly discovered evidence, the action of the eourt in overruling the motion for a new trial was not error.” The appellant’s present bill to set aside the former judgment discloses that it is deficient in material allegations, because it alleges that appellant did not know of the former injuries to respondent until after the judgment, and fails to allege that it did not discover the alleged fraud at the time of the filing of the motion for a new trial in the original action. In other words, it was the duty of appellant to present the matter now complained of in its motion for a new trial, because of newly discovered evidence, unless there was an allegation and proof that it did not know of this at said time. The precise question arising on ultimate facts identical with those in the present case has been exhaustively examined and the law luminously declared by our Supreme Court in the case of Wabash Railroad Co. v. Mirrielees, 182 Mo. 126, 81 S. W. 437, to the following effect: Fraud for which a judgment may be vacated or enjoined in equity must be in the procurement of the judgment. It can not be set aside on the ground that witnesses falsely testified as to issues settled by the judgment, unless the party obtaining the judgment by some trick or artifice or fraudulent conduct in some manner deceived the other as to what the witnesses would testify to. A bill in equity asking that a judgment in a suit at law be set aside on the ground that it was founded on false testimony, should [234] show that the plaintiff exercised diligence to discover the falsity of such testimony, or was prevented by some trick or the fraudulent conduct of the successful party in that suit from exercising such diligence. The law on the questions involved in this record in this state and in most other jurisdictions has reached a stable equilibrium. “Although some few cases sustain the doctrine that equity may grant relief against a judgment obtained by means of false testimony, and especially where it was procured, concocted, and intentionally produced by the successful party, yet the weight of authority is to the effect that there is no ground for equitable interference with a judgment in-the fact that perjury was committed by such party or his witnesses at the trial, . . . .” [23 Cyc. 1027.] Fraud for which a judgment may be vacated or enjoined must be collateral to the issues adjudicated in the case and must exist in the very procurement of the judgment. Such judgment can not be set aside on the ground that witnesses falsely testified as to issues settled by the judgment unless the party obtaining the judgment by some trick or artifice or fraudulent conduct in some manner deceived the other party as to what the witnesses would testify. [Wabash Railroad Co. v. Mirrielees, supra; Howard v. Scott, 225 Mo. l. c. 712, 125 S. W. 1158; Vance v. Burbank, 101 U. S. 514; United States v. Throckmorton, 98 U. S. 61.] The reason for this rule is very ably stated by Shaw, C. J., in Greene v. Greene, 2 Gray 361, as follows: “But where the same matter has been either actually tried or so in issue that it might have been tried, it is not again admissible; the party is estopped to set up such fraud, because the judgment is the highest evidence, and cannot be controverted.” The vitality of the old common law maxim is yet unabated — Interest republicae utsitfinis litium, — meaning. It concerns the commonwealth that there be a limit to litigation. The establishment of the right in the defeated party, claimed by the appel [235] lant, would open the way for another contest in equity in almost, if-not in every, suit decided by a court of law. [Gray v. Barton, 62 Mich. 196.] One of the special grounds of equity jurisdiction is the prevention of a multiplicity of suits; but if courts of equity were to assert a right to re-try every case in which a judgment or decree had been procured on the evidence of perjured witnesses, equity would itself become an instrument of mischief and engender an endless strife between litigants which it was instituted to prevent. It thus manifestly appears that the judgment in this case of the learned judge of the trial court in sustaining defendants’ demurrer to the petition was in accordance with reason and authority, and such judgment is therefore affirmed. All concur.