Dalton v. Libby

9 Nev. 192

• Court: Nevada Supreme Court
• Decided: January 15, 1874
• Status: Published

Opinion

By the Court,

Whitman, C. -J.:

Appellant, by his bill, seeks to avoid three several judgments : first, the decree and judgment rendered on the fifteenth of July, 1871, in favor of respondents against him. His motion to that effect was denied in the district court; and he is entitled to maintain this bill, having exhausted his legal remedy, upon the ground that such judgment and decree were void. State v. Roberts, 8 Nev. 239. The facts upon which this court stands for this holding, appear fully in the case cited; therefore it is unnecessary to repeat them here.

The other two judgments are identical, and may be considered as one, for the purposes of this decision; they were obtained on an injunction bond, executed in the original cause before mentioned. The cases were tried at a regular term of the district court, appellant made defense there, and here; where on appeal from the judgments they were affirmed. Respondents insist that appellant should not have the relief asked by him against them; and that the order denying Ms application for an injunction should be sustained. This upon two grounds; first, that the original judgment was erroneous rather than voidable or void. This is not tenable; it purported on its face to be rendered by a court at a regular term; when in fact it was rendered by no court, at no term, and was in fact and law no more the judgment of the court than if an arrant forgery. Secondly, it is claimed that appellant should have set up the facts touching this judgment in defense of the suits in which the judgments here complained of were rendered. This position is correct; for while the original judgment must upon showing of the whole record of the court be pronounced void, yet it does not so appear of its own record; that, being regular on its face, required extraneous facts to be shown to impeach it. To illustrate: had the original judgment become the foundation of a suit against appellant in another state, it must be allowed that it would have sustained a judgment; no proof being made of its invalidity. So here; to these suits based upon the injunction bond, which gave no cause of action until final judgment in the case had vitalized it; it was a complete defense to show no such judgment; but in the absence of such showing, which could have been made and was not, these judgments should stand, because apparently there was such final judgment.

Appellant claims that he was not called upon to defend against a nullity; that there could be no action upon the injunction bond until there was final judgment in the case, wherein it issued; and that there was no such judgment. The fault of this position is, that apparently there was a regular judgment; and there was nothing in the record of the case itself, taken by itself, to show the contrary. Thus proof being necessary to show its invalidity, it was the duty of the party desiring its aid to produce it.

The very complaint in this case tends to prove respondents’ point good. A court of equity will not interfere to relieve against a judgment void on its face ; because relief in such form is unnecessary. If then, as in this case, the present complaint states facts sufficient to warrant a court of equity in setting aside the original judgment, does it not follow that what is good ground for relief in this case, upon the point stated, would have been equally good matter of defense to those suits, growing directly out of the original judgment; and being known and within the power of appellant to produce, as it was; does not such production become absolutely incumbent upon him ? It certainly seems beyond argument that this is so. If so, then it was laches on appellant’s part not to make such defense, and be cannot claim equitable interposition to remedy such neglect.

That portion of the order of the district court denying the prayer of appellant’s complaint as to the judgment and decree in the case of Peter Dalton v. "William Libby and Thomas Lamburth of date July 15th, 1871, is reversed; the remainder is affirmed, at appellant’s costs.