Day, J.
1.1>leading: alleged. The demurrer was properly sustained, if for no other reason, upon the ground that the petition does not state" that the fraudulent acts of Ware, of which complaint is now made, were not known to plaintiff when the former action was commenced. True, the petition states that since the decision in the former case plaintiff's have learned new and material facts in relation to the fraud practiced by Ware in obtaining the decree confirming his title to the land. But what these new and material facts are, the petition does not state. It nowhere appears in the petition that any fact has been learned since the former decision respecting the conduct between Ware and Freeman’s attorney, or respecting reports circulated by Ware to keep third persons from informing plaintiffs that he had obtained a decree quieting his title to the lands. The petition, should distinctly aver what facts have been discovered, in order that the court may determine whether they are new or material: Without suggesting other objections to the petition which might be mentioned, we are clear that in this respect it is fatally defective.
Affirmed.
Seevers, Oh. J., having been of counsel, took no part in this decision. Free access — add to your briefcase to read the full text and ask questions with AI