In re Burdick

162 Ill. 48

• Court: Illinois Supreme Court
• Decided: May 9, 1896
• Status: Published

Opinions

Mr. Justice Baker

delivered the opinion of the court:

One George Burdick was convicted in the Jackson circuit court, upon two indictments, for selling railroad tickets in violation of the act of the legislature approved April 19, 1875, entitled “An act to prevent frauds upon travelers, and owner or owners of any railroad, steam- . boat or other conveyance for the transportation of passengers.” (2 Starr & Curtis’ Stat. p. 1951.) Upon each indictment a judgment was rendered against him for a fine of §500. He thereupon sued out writs of error and brought the two cases to this court. The judgments were here affirmed. The cases are reported as Burdick v. People, 149 Ill. 600, and Burdick v. People, id. 611. At a subsequent term of the court George M. McKenzie, Levi Salomon, A. J. Geis, S. A. Fishel, E. J. Hunter and Edward List, as amici curice, presented to this court the petition now before us, and asked that we should strike out, annul and expunge from the record and reports of the court the opinions and judgments in said cases of Burdick v. People, for the alleged reason that said causes were fictitious and collusive, and that said opinions and judgments were obtained by collusion and by fraud practiced on this court. Along with the petition numerous affidavits were filed which tended to prove the truth of the statements made in said petition. Thereupon a rule was entered, returnable to the then next term of the court, requiring the attorneys of record both for the plaintiff in error and for the defendant in error in said two cases of Burdick v. People, and other persons named in the aforesaid petition as being parties to the alleged collusion, to show cause why, if any, the opinions and judgments in question should not be stricken out, annulled and expunged from the record and reports of the court. Answers and returns to said rule were made by the several persons against whom the rule was entered, and the answers and returns were duly sworn to, and were in denial of the charges made, and were accompanied by affidavits of other persons tending to support such denials.

In the view we have taken of the matter it will not be necessary for us to weigh the testimony found in the petition and in the answers thereto, and in the affidavits filed with said petition and answers, respectively, for the purpose of determining whether or not the prosecutions against George Burdick were fictitious and collusive.

Upon what footing do the petitioners stand before the court? They appear as amici curiae. They say that they are engaged in the business of ticket brokerage, and also that two of them (George M. McKenzie and Levi Salomon) appear on behalf of the American Ticket Brokers’ Association, and two of them (A. J. Geis and S. A. Pishel) on behalf of the Guarantee Ticket Brokers’ Association, and three of them (Levi Salomon, E. J. Hunter and Edward List) on behalf of the Chicago Ticket Brokers’ Local Association. They do not show that any indictment is pending against them or either of them, or any member of either of said ticket brokers’ associations, for a violation of the statute that was involved in the decision made in the Burdick cases. And what was the status of said Burdick cases at the time they presented their petition to the court? The judgments that had been rendered against Burdick in the circuit court upon the two indictments against him had, many months before, been affirmed by the final judgments and decisions of this court, and the time limited for filing petitions for rehearings had long since expired, and the opinions of this court in said cases published in the official Reports of the court; and, moreover, the amounts due upon said judgments had been fully paid to the officer of the law authorized to receive the same. Besides this, not only the term of the court in the Southern Grand Division, as of which these final judgments were entered, had expired, but the next succeeding term of the court in said grand division had ended fully six months prior to the presentation of the petition to vacate said judgments.

Do the petitioners stand in such attitude as will authorize the court, upon their motion, to expunge from the record and from the reports of the court the said judgments and the opinions rendered in deciding them? It goes without saying that to present a fictitious case to the court for the purpose of obtaining its opinion, or for other fraudulent purpose, is a contempt of its authority and dignity, and the court will in such case, under all proper circumstances, protect itself and litigants, and the rights of third parties, by the imposition of penalties for the contempt and by the dismissal of the fictitious suit or the appeal or writ of error therein, and even by setting aside or affording relief against a collusive and fraudulent judgment, either at or after the term at which it is entered.

It is settled law that while a collusive or fraudulent suit is still pending the court will, at the suggestion of either a party to the record, or a person in interest or who may be prejudiced by the judgment, or even at the instance of a stranger who appears as amicus curice, or upon its own motion, dismiss such suit out of court. (Matter of JElsam, 3 Barn. & Cress. 597; Coxe v. Phillips, Hardw. 224; Brewster v. Kitchin, Comb. 424; Smith v. Brown, 3 Tex. 360.) And the same rule applies where the false and fictitious case is pending in a court of review on appeal or writ of error, and such appeal or writ of error will be dismissed. (Lord v. Veazie, 8 How. 251; Bartemeyer v. Iowa, 18 Wall. 129.) And the rule,that is applicable where both parties collude to get up a case for the opinion of the court is applicable to a case where one of the parties becomes owner of the whole opposing interest and sole party in interest, and is dominus litis on both sides. (Cleveland v. Chamberlain, 1 Black, 419; American Wood Paper Co. v. Heft, 131 U. S. (Appen.) 92, and 8 Wall. 333; Dakota County v. Glidden, 113 U. S. 222.) And such rule remains in force during the time allowed for ordering a rehearing and while the case is pending on rehearing. In Smith v. Junction Railioay Co. 29 Ind. 546, an opinion had been filed deciding the questions raised on the appeal, but the court, upon a petition filed by one James Smith, who was supposed to be the appellant, and by one Kent, supported by affidavits, entered an order granting a rehearing and ruling the appellee to show cause why the appeal should not be dismissed. It was then made to appear that the suit was fictitious and that there was no real controversy between the parties to it,—in fact, that the suit was a mere fiction, and intended to affect a real litigation then pending between said Kent and the railroad company. The appeal was thereupon dismissed at the cost of the appellee.

In this State the general rule is, that after the adjournment of the term at which a judgment is rendered, a court, at a subsequent term, has no discretion or authority to set aside such judgment. (Cook v. Wood, 24 Ill. 295; Humphreyville v. Culver, 73 id. 485; Goucher v. Patterson, 94 id. 525.) In Cook v. Wood it was said, that after the term has expired application should be made to a court of equity for any relief against the judgment as having been obtained by fraud. In 1 Freeman on Judgments (sec. 99) it is said: “The maxim that fraud vitiates everything is applicable to judgments. Whether the maxim is to be given effect „on motions to vacate them is more doubtful. In many instances judgments have been vacated for fraud in their procurement upon motions made after the lapse of the term at which they were entered, but we judge the safer practice is to require relief to be sought by suits in equity.”

But in the view we take of the case before us it is immaterial whether the power to set aside a judgment for fraud or collusion is a common law power inherent in all courts of record and that is proper to be exercised after the expiration of the term at which the judgment was rendered, or whether the rule is that after such term has gone by the judgment can be vacated or relieved against only by a suit in equity. We understand the doctrine to be, that the person making application, whether by motion or by bill in chancery, to set aside a judgment after the end of the term in which it was obtained, must either be a party to such judgment or in privity with such party, or be possessed of rights or equities which are directly and injuriously affected by the judgment. There are many cases where the court, at a term subsequent to that at which a judgment or decree was rendered, has interposed to set aside such judgment or decree for either fraud or collusion, but we know of none in which such action has been taken where the party applying for such relief has not been within one or the other of the above mentioned classes of persons. To permit strangers whose rights or interests are not directly and injuriously affected by the judgments or decrees to overturn adjudications to which the parties and those in privity with them make no objections, would encourage' litigation and disturb the peace of society.

In Kemp v. Cook, 18 Md. 130, the party moving to strike out the judgment was a defendant against whom such judgment had been recovered. Taylor v. Lindell, 34 Md. 38, and Dial v. Farron, 36 Am. Dec. 267, and 1 McMull. 292, were cases of like character. In Edson v. Edson, 108 Mass. 590, as well as in Allen v. McClellan, 12 Pa. St. 328, the complaining party was the defendant against whom a fraudulent divorce had been entered. In Cannan v. Reynolds, 5 El. & Bl. 301, the action of the court was taken at the instance of the plaintiffs in the suit. In Mayberry v. McClurg, 51 Mo. 256, the moving parties were the heirs of the deceased person against whose estate the collusive judgment had been obtained. In Conn’s Lessee v. Whiteside, 6 Humph. 47, the motion to set aside the judgment was made by the landlord deprived of his land, through the fraud of his tenant, by the judgment in ejectment. In In re Fisher, 15 Wis. 511, the moving party was the executor and legatee whose rights of property were directly affected by the order fraudulently procured. In Philipson v. Earl of Egremont, 6 Ad. & El. (N. S.) 587, the plea to the scire facias was interposed by the defendant to said writ, who, being a member of the Commercial Packet Company, was personally liable as such for the judgment against the company that had been fraudulently and collusively recovered. In Galatian v. Erwin and Cunningham v. Erwin, Hopkins’ Ch. 48, the complainant in the cross-bill was an heir who had been deprived of her estate by the actual fraud of her guardian. In Mitchell v. Kintzer, 5 Pa. St. 216, the person who sought to avail of the fraud was the person who was about to be deprived of her estate by means of such fraud. The case of United Slates v. Flint, 4 Sawyer, 42, was a suit in equity brought on behalf of the United States for the purpose of setting aside and annulling a decree confirming title to a rancho, derived from the authorities of Mexico. In State of Michigan v. Phoenix Bank, 33 N. Y. 9, the State was allowed to impeach for fraud an award based on a fictitious claim, and recover back money paid by it upon such award. In Earl of Brandon v. Becker, 3 Cl. & Pin. 479, the tenant in remainder was granted relief on his bill to redeem, where his interests had been sacrificed by collusion and fraud among the mortgagee, the tenant for life, the person in whose favor a charge had been created and the purchaser at the sale. Gore v. Stackpole, 1 Dow, 16, was a direct and successful attack, in 1813, on a collusive foreclosure decree entered in 1733. The complainant was a tenant in tail whose title had just ripened into possession but had apparently been extinguished by the foreclosure. In Fermor’s case, 2 Coke, 202, (third part, 77,) there was a direct attack in chancery by the landlord on a record of the Court of Common Pleas, where his tenant had, by fraud and collusion, levied a fine with proclamations to bar the inheritance. The attack was after the right of the landlord would have been barred by the lapse of time allowed by the statute to make an entry or bring his action after the fine, had not the tenant fraudulently continued to pay rent to the landlord after the fine, thereby keeping him in ignorance of that proceeding.

In a direct attack upon a judgment or decree the moving party must be either a party to such judgment or decree or privy to it, or be directly, injuriously and necessarily affected by it, and be possessed of rights or equities that are entitled to be protected from its operation, and the party to the judgment or decree, or privy to it, is restricted to a direct attack by a proceeding instituted for the express purpose of annulling, correcting or modifying such judgment or decree, and cannot make a collateral attack upon it. On the other hand, strangers to the j udgment or decree, as to whom it is not res judicata, have the right to impeach it for fraud or collusion when offered in evidence or sought to be enforced against them. The domain of collateral attack is then open to them.

Duchess of Kingston’s case, tried before the House of Lords, (20 Howell’s State Trials, 355,) is a leading case upon the question of the right of a stranger to a judgment or decree to impeach such judgment or decree for fraud or collusion. There the judges, speaking through Sir William DeGrey, Lord Chief Justice of the Court of Common Pleas, were unanimously of opinion, first, that a sentence in the spiritual court against a marriage in a suit of jactitation of marriage is not conclusive evidence, so as to stop the counsel for the crown from proving the marriage in an indictment for polygamy; but, secondly, admitting such sentence to be conclusive upon such indictment, the counsel for the crown may be admitted to avoid the effect of such sentence by proving the same to have been obtained by fraud or collusion.

In Sheldon v. Patrick, 1 Macq. 535, (H. L. Cas.) the case was that Sheldon brought suit in 1854 to recover land that he would have inherited had he been legitimate. He was confronted by a judgment of the Court of Sessions of Scotland against his legitimacy, rendered in 1803 and affirmed by the House of Lords in 1808, and he offered to show that the original judgment and the judgment of affirmance were obtained by fraud and collusion. He was a stranger to the judgments, but directly and necessarily prejudiced by them. The decision of the House of Lords was, that where a judgment has been obtained by fraud, and more especially by the collusion of both parties, such judgment, although confirmed by the House of Lords, may be, even in an inferior tribunal, treated as a nullity. Lord Brougham, in delivering his opinion, said that the judgment of the House of Lords was to be “dealt with in the inferior court before which its merits were brought,—that is to say, not the merits of the judgment, but the merits of the parties who had so fraudulently obtained it,—the question being, was it a real judgment or not? For that is the only question in such cases, and that is the question in this case.”

The contention of petitioners is, that because they may be subjected to criminal prosecutions under the act of April 19, 1875, that fact gives them a standing in court to vacate and set aside the judgments against Burdick and expunge the opinions of this court from its records. We" do not so understand the law. No case has been cited, and we know of none, where a court has vacated a final judgment after the expiration of the term at which it was rendered and the lapse of the time allowed for ordering a rehearing, except at the instance of a party to the record, or one who was privy to the judgment, or one whose property or rights or equities were directly, necessarily and injuriously affected by such judgment; and sound reason, the stability of judicial proceedings, the peace of society and public policy demand that no rule should be established which would allow mere strangers and volunteers to interfere to upset and overturn final judgments of courts with which the parties to the record and those in privity with them are content. Here the judgments against Burdiok were fully paid and satisfied prior to the commencement of this proceeding, and satisfaction was the last act and end of the judicial proceedings. But even if they were not satisfied, petitioners would not be liable for their payment, and it is not suggested that they are, or ever were, in any way a lien upon or affected any property owned or claimed by petitioners. The judgments could not be, and never could have been, either enforced or introduced in evidence against petitioners. And even if it were possible to conceive of a case where it would be otherwise, yet petitioners, being strangers to the judgments and not in privity therewith, would have the full benefit of a collateral attack upon them, and it will be time enough to make such attack when they are confronted by them.

No contention is made that the statute which was considered in the Burdick cases is unconstitutional, or that this court, in the opinions filed by it, did not correctly hold the law. Indeed, it is explicitly suggested by the petitioners that “the question raised by the petition is not at all whether the statute in question is or is not valid and constitutional.” The judgments of affirmance in the Burdick cases and the opinions of the court in deciding them are conclusive only as between the parties to those cases,—the People of the State and Burdick; but they are no' estoppel as between the People of the State and the petitioners. Petitioners, therefore, are "by said judgments and opinions not déprived of the right to present to this court, or any other court, the question of the constitutionality and validity of the statute in question, and enforce their contention in that behalf by any argument that they or their counsel see fit, and demand the judgment of the court upon the claim they make.

The statute is either constitutional or unconstitutional. It having been enacted by the legislative power of the State, all the presumptions are and must be in favor of its constitutionality and validity. If it is unconstitutional, then petitioners, if occasion should require, are not precluded by the judgments and opinions in the Bur-dick cases from availing of such unconstitutionality. If it is a constitutional and valid statute, then the question of its propriety is one for the legislative department of the government, and not for us, and the court should not be hasty in permitting itself to be used by confessed violators of a criminal statute for the avowed purpose of enabling them to carry "on a business that is prohibited by public law.

We are satisfied that the petitioners do not stand upon such ground as gives them the right to call upon the court to vacate, strike out and expunge the judgments and opinions in the Burdick cases. The petition, therefore, is dismissed out of court at the cost of the petitioners.

Petition dismissed.

Mr. Justice Carter, dissenting.