First Baptist Church v. Syms

52 N.J. Eq. 545

• Court: Supreme Court of New Jersey
• Decided: June 15, 1894
• Status: Published

Opinions

The opinion of the court was delivered by

Beasley, C. J.

The facts of this case are so fully stated in the opinion read by the chancellor, that it is not necessary to rehearse them.

The only question that this court has been called upon to consider is, whether a certain judgment obtained by Robert Syms against his brother, Parker Syms, as the executor of his father, should be permitted to stand or should be set aside. These litigants were brothers, and the chancellor finds that the judgment in question was obtained by collusion between them. In the opinion of this court no other reasonable conclusion can be reached from the proofs before us. We fully agree with the statements and strictures of the chancellor with respect to the conduct of the trial of the case. He says: “ No witnesses were produced in behalf of the defendant [that is, the executor]. The defendant appeared by counsel before the referee, and that counsel cross-examined the plaintiff’s witnesses in such a manner that it is impossible to read the cross-examination without an abiding conviction that it was intended to aid the plaintiff’s case rather than to defend against it and defeat it.”

It is plainly shown that the matter in question could not be fairly tried without the testimony of one Mrs. Serrell, and on this subject the chancellor says: “The plaintiff testified, as an excuse for the non-production of Mrs. Serrell as a witness, that she was then ill and absent from home, and that excuse was suffered to account for her absence, no application being made to continue the case until her attendance could be had. Neither she, nor her sons, nor her daughter-in-law, nor John J. Syms, nor George N. Syms were produced by the executor, although the case abundantly discloses that they were known by him to Joe most material witnesses in his behalf. Although the executor was sued in a representative capacity, he made no objection to the plaintiff being sworn in his own behalf and testifying both to conversations and transactions with his decedent. Indeed, it is difficult to see how the case could have been more carefully ■managed to support the plaintiff’s claim ” &c.

In view of these circumstances, the chancellor thus expresses his conclusion, viz.: “ If it were in the power of this court to afford the complainant relief against the judgment upon the establishment merely of collusion between the parties to it, in pursuance of which important evidences were intentionally withheld from the law court, particularly where that collusion is coupled with the fact that the defendant in the judgment occupies a position of trust and confidence, as executor of his father’s will, to •each of the legatees thereunder, which demands from him the exercise of a more scrupulous fidelity than such collusion admits of, I could have little hesitation in granting it relief.” The chancellor then proceeds to explain the ground on which he feels constrained to refuse to grant the prayer of the complainant, such ground being, in his own language, “ that this court’s jurisdiction obtains in such a case as this only upon the establishment of fraud, and to establish that the proofs must show not only ■collusion and the intentional concealment of evidences, but also that the evidences withheld, if they had been presented to the law court, would clearly have been sufficient to defeat the plaintiff’s suit. In other words, it must clearly appear that the collusive acts have done injury to the complainant.” For the doctrine thus propounded the case of Herbert v. Herbert, 4 Dick. Ch. Rep. 566, is cited.

With respect to the ascertainment by the chancellor of the facts of the case and his estimation of their effect, this court, in all particulars, concurs; but we cannot agree to the legal theory that was applied to them. In our opinion it is plain that the ■complainant has been, and is, greatly wronged and injured by this collusive judgment. Unless it be vacated it stands as prima facie evidence of the right of the plaintiff in it to recover the sum awarded, and thus the burden of the proof is shifted so that the appellant is obliged to prove a negative. But more' than this, it has deprived the appellant of an honest trial of his-case in the courts of common law and the verdict of a jury. It is the prerogative of every man that his adversary shall be compelled to prove the validity of his claim, and that such proof shall be made before the tribunal appointed for that purpose. These are fundamental rights and of these this appellant has been deprived by the indefensible practices that have been so strongly reprobated in the opinion under criticism. Eor do we-think that the case cited will, in any degree, bear the construction put upon it. That was the case of a judgment that had been obtained by virtue of a proceeding in foreign attachment, arid it certainly, in nowise, is intimated in it that if such a course of law had originated in, or had been carried on by means of, covinous practices it would not have been abolished by a decree in equity.

The result, therefore, is that this court adjudges-that- the decree appealed from be reversed, and in its stead that a decree annulling the judgment in question be entered.*

In order to avoid misconception it is proper to say before leaving this subject, that it is not to be inferred that the view that this court has taken of the merits of this case coincides with that expressed by the chancellor. The burden is upon the defendant Robert to show that the alleged gift of his father’s interest in the estate in question was actually and legally made, and it may well be doubted whether he has succeeded in fulfilling either requirement. The evidence is conflicting and obscure, and the gift was by parol, although the subject of it was mainly land, and consequently to what extent it is affected by the statute of frauds, is obviously a matter of vital interest, although in the progress of the investigation it seems to have escaped attention. But as this court has disposed of the case on an issue that does not involve these latter questions,, with respect to them no definitive conclusion, has been, reached..