Ball v. Warrington

DALLAS, Circuit Judge. The court in its charge explained — clearly, I think —the distinction between a defense which might have been interposed to the cause of action upon which the Kansas judgment was founded, and the defense here allowed that it (the judgment sued on) had been collusively procured. The only question submitted was whether the judgment had been obtained by fraud. This question of fact was fully argued by counsel, and the jurors were instructed that their verdict must be based solely upon their answer to it. Therefore the verdict which was rendered necessarily involved the finding that the judgment had been fraudulently secured, and I cannot say that this finding was, under the evidence, so plainly unreasonable as to warrant the court in overturning it. Indeed, I think it could not be set aside without disregarding the whole tenor of the opinion delivered by the court of appeals for this circuit in Warrington v. Ball, 33 C. C. A. 609, 90 Fed. 464; and that it was there decided that such a defense is a valid one, and one which is available at law as well as in equity, is unquestionable. The plaintiff has filed ten reasons in support of his rule for a new trial, but they need not be separately considered. They appear to be all substantially met by what I have said, and by the. judgment of the court of appeals to which I have referred. The rule for a new , trial is discharged.