Morris v. Travelers' Ins.

MARTIN, District Judge (after stating the facts as above). This is clearly an attempt to attack collaterally a judgment of a court of competent jurisdiction and to try the validity of such judgment by jury, and at the same time to try by the same jury the original cause of action upon which that judgment was rendered. [1] The plaintiff has no right of action at law against the Travelers’ Insurance Company, as he had no contractual relations with said [214] company. True it is that he has alleged that the two companies colluded to defraud him the bringing of the suit that he now seeks to avoid. The plaintiff alleges that he was 19 3rears of age at the time of his injury and he brings this suit nearly eight years thereafter. The records of Windsor county court show the judgment and stipulation 'as set forth in this declaration, and that the original suit was brought for the plaintiff by George L. Fletcher, Esq., of Chester, Vt., and that C. H. Burns, Esq., was counsel for the defendant. (Said Fletcher and said Burns have since deceased.) No person is named as having committed any fraudulent act. Neither is there any allegation that the Union Soapstone Company is still in existence. The records show that it was dissolved in 1904, according to law, and has ever since been out of business. 1 am unable to see how the defendant can answer to the plaintiff’s allegation of fraud by the Union Soapstone Company without some person being named who acted for and in behalf of the company, whereby that person can be inquired of as to the facts relating thereto. No person is named who acted for and in behalf of the defendant, Travelers’ Insurance Company, whether agent, adjustor, or some one of its attorneys. That company should not be called upon to make inquiry of every attorney, agent, or other person who may have been acting for it some nine years ago that it may plead to such general allegations as this declaration contains. [2] I recognize the.principle of law that fraud may vitiate a contract, and extrinsic fraud may vitiate even a judgment of a court of competent jurisdiction under proper proceedings brought for that purpose, but not by collateral proceedings. U. S. v. Throckmorton, 98 U. S, 61, 25 L. Ed. 93; French v. Raymond, 82 Vt. 156, 72 Atl. 324, 137 Am. St. Rep. 994. This principle of law is too familiar to require the citation of further authorities. [3] The serious question presented is whether or no this is a collateral proceeding. The gist of this declaration is the defendant’s alleged negligence and the plaintiff’s damages. This old judgment seems to stand in the plaintiff’s way of obtaining a new judgment for a larger sum, so he asks that in some form the facts relating to that old judgment be tried out, and, if found to be fraudulent, that he may then proceed with the trial of the main issue. This seems to me a collateral attack upon the old judgment. [4] I think the defendant should not be called upon to answer to the plaintiff’s allegation of fraud by the Union Soapstone Company, as no particular act is set forth as having been performed by any particular person acting for and in behalf of said Union Soapstone Company, and for and in -behalf of said Travelers’ Insurance Company. The only specific act brought to the attention of the court is the stipulation upon which judgment was rendered, and the declaration is silent as to the persons, officers, or counsel of either corporation who had to do with the deceit claimed to have been practiced upon the plaintiff. Harris v. Bottoum, 81 Vt. 346, 70 Atl. 560, and cases there cited. Fogg v. Blair, 139 U. S. 118, 11 Sup. Ct. 476, 35 L. Ed. 104. [215] I hold: First. That this is not a proper proceeding to attack the judgment referred to in the declaration. Second. That the allegations are too indefinite to require the defendant to plead further. Fet entry be made ''Demurrer sustained,” and judgment accordingly.