Penniston v. Miller

Stone, J. The complaint challenged by the general demurrer, from the order overruling which this appeal was taken, alleges that the judgment which is sought to be set aside was procured fraudulently by the false and perjured testimony- of defendant (respondent here and plaintiff in the former action) and another witness. The issue to which the alleged perjured testimony was directed was very simple, and raised only the question as to whether or not a farm was susceptible of drainage. The complaint shows very clearly that the false swearing had to do with nothing else. That issue was the only one litigated and the defendant in the former action (plaintiff [404] and respondent here) was fully advised as to just what he had to meet. The jurisdiction of the court was properly invoked and neither party depended upon the other for any proof necessary to sustain his contention. It is true that the statute provides for setting aside “any judgment obtained in a court of record by means of perjury, subornation of perjury, or any fraudulent act, practice or representation of the prevailing party.” But as long ago as 1889 in Hass v. Billings, 42 Minn. 63, 43 N. W. 797, the statute, for the very convincing reasons stated in that decision, was construed not to apply to a case such as this. Where an issue is squarely made and each party knows what the other will attempt to prove, and neither has a right or is under any necessity to depend upon the other’s proving the fact as he himself claims it, the mere allegation by the defeated party that there was, as to such issue, false or perjured testimony by the successful party or his witness, will not bring the case within the statute. This is such a case. Therefore, the demurrer to the complaint should have been sustained. Hass v. Billings has been followed in cases too numerous for citation; among others, Marcus v. National Council, K. & L. of S. 134 Minn. 338, 159 N. W. 835. Geisberg v. O’Laughlin, 88 Minn. 431, 93 N. W. 310, is not at all an authority to the contrary, for there the fraud successfully complained of was a false affidavit of publication which resulted in the jurisdiction of the court being fraudulently invoked. The order appealed from is reversed.