Royal Indemnity Co. v. Sangor

’Wrxsnow, O. J. The fraudulent scheme set forth in tbe complaint is quite remarkable, but by no means incredible. If it can be proven by that quantum of clear, convincing, and satisfactory evidence which the law requires in such cases (Boring v. Ott, 138 Wis. 260, 119 N. W. 865), it would be a reproach to the law if tbe wrong inflicted by it could not be redressed. Tbe respondents claim that there can be no recovery because the former judgment in the action on tbe bonds is res adjudicate, of all questions set out in the complaint herein and [150] that such judgment cannot be set aside or even attacked in the present action. The doctrine of the conclusive effect of a judgment upon all questions litigated or involved in the action is very well understood and needs no discussion here. Equally familiar is the general rule that money paid under a judgment rendered by a court having jurisdiction cannot be recovered back simply because it is afterwards discovered that it was not due. Were the rule otherwise, litigation and relitigation of the same questions would have no end. But neither of these principles controls here. The facts alleged present an elaborate and successful scheme to defraud the plaintiff, not a mere showing that there has been money paid which was not really due. If this scheme had proceeded only so far as'the judgment and had been discovered before payment of the money, there would have been no question under our decisions of the power and duty of the court to halt it and coerce the conspirators by forbidding them to utilize their ill-gotten judgment. Stowell v. Eldred, 26 Wis. 504; Balch v. Beach, 119 Wis. 77, 95 N. W. 132; Boring v. Ott, 138 Wis. 260, 119 N. W. 865; Laun v. Kipp, 155 Wis. 341, 145 N. W. 183. In all these, cases the judgment existed just as here, and it was allowed to remain untouched,-but the parties obtaining it were prevented from using it. It is said that this is as far as a court of justice can go, and that when the judgment has been paid, though paid in ignorance of the fraud, the court’s power of redressing the wrong ipso facto ceases. The argument does not appeal to the mind seeking to make the courts what they were intended to be, namely, a place for the doing of justice father than a place for applying the rules of a game. It seems to offer a prize to the most able rogue; it says to the wrongdoer, if you can successfully conceal your fraud until you have obtained the money the law will view the matter with complacency, but if you are so unskilful that you can [151] not keep your scheme dark until the judgment has been collected the law will step in. No good reason is perceived why any such distinction should be drawn. The judgment is just as much res adjudi-caba in one case as the other. If in the cases above cited justice could be done by simply coercing the party, there is no logical reason why justice cannot be done by coercing the parties in such a case as is here alleged, the judgment in both cases being allowed to remain of record untouched. One might enter upon an extended discussion here of the powers of a court of equity, the functions and limitations of the bill of review, and the artificial rules which abounded prior to and even since the adoption of the Code, but it would serve no good purpose. Much of this lore is now of interest only to the historian or the seeker after legal curios. Our Code gives an action for “the redress ... of a wrong.” Sec. 2595, Stats. 1915. If the allegations of the complaint be true, a great wrong has been committed here. The provisions ,of sec. 2832, Stats. 1915, have no application. It is not meant by this that the mere presence of frau'd will prevent the obtaining of relief under that section provided the conditions named in the section be present, but merely that the purpose of that section is to afford relief from the effect of mistakes, accidents, and inadvertences, and not to provide a means of recovering damages against conspirators, for a successful fraud. A civil action against the conspirators is therefore the remedy under •the Code. Whether that action be an action in equity or an action at law is of no importance uuder the present practice, except for the fact that the state constitution (sec. 5, art. I) guarantees to a litigant the right to a jury trial in all cases “at law,” lienee it is necessary to determine whether the present action be an action at law or in equity in order to determine the proper method of trial. In our judgment it is clearly an action at law. The only [152] relief obtainable or appropriate is a money judgment for damages. This is the characteristic judgment in an action at law. Hence it follows necessarily that an action at law furnishes complete and adequate relief, and when that is the case there is no excuse for resorting to equity, because the equitable action only lies when there is no adequate remedy at law. This is fundamental. By the Court. — Order reversed, and action remanded with directions to overrule the demurrers to the complaint.