SULLIVAN, J.
— This action was brought to vacate a judgment in favor of the respondents and against the appellant Jones. Said judgment was entered cn the eleventh day of May, 1903, and the said Jones was commanded to remove a certain wharf in the Pend d’Oreille river. The appellant Jones will hereafter be referred to as Jones, and respondents will be referred to as Vanes.
The dispute in this action relates to a pier or landing-place within the navigable waters of the Pend d’Oreille river, which is a navigable river deriving its waters from the mountains of British Columbia and Montana. As a navigable river it flows through a part of the state of Idaho, into and across a part of the state of Washington, thence via British Columbia [359]*359and the Columbia river to the Pacific Ocean. The shore end of the said pier and landing in dispute is at the point on the river bank between high and low water marks and on ground claimed by Jones to belong to the state of Idaho; that is, it is the bed of a navigable stream. The state of Idaho intervened in this action and by its complaint in intervention it asserts ownership to the bed of said river on which said pier stands. It also alleges the issuance of a license by the state to Jones in 1902, permitting said Jones to erect said pier. It is alleged that the whole of said pier is submerged at ordinary high water. The shore end of said pier abuts or is on a square or plaza for a street leading on the county road to the landing, which road, it is alleged, was platted and dedicated to the public by Vane’s predecessor in interest, prior to Vanes’ acquiring any interest in said land. It is also alleged that the dedication of that portion of the square and street below high-water mark covered land to which the dedicator has no title, as it is averred said title was in the state; the title to the upland was derived by Vanes’ predecessors by patent from the United States, and the patent limited the number of acres granted, which were all above high-water mark. Jones, since 1889, had been engaged in st-amboat navigation on said river in Idaho and Washington, carrying mails, passengers and general merchandise, and said pier is the Idaho terminal of his boats, and it is alleged that he built and owned said pier, and that he derived his right to build and maintain the same by permit from the United States, and by a license from the state of Idaho, upon the landing-place; all of which rights attached and were exercised many years before Vanes acquired any interest in the adjoining upland, and it is averred that Vanes never had any interest in the strip of land between high and low water marks or in the bed of said river. That said landing is connected with the public road, which existed prior to the government survey, and is recognized on said survey, which survey was long prior to the platting of said land by Vanes’ predecessor. Jones duly appealed to this court from the judgment which this action is brought to vacate, and it is alleged that with[360]*360out his knowledge, and for no fault of his, and for no cause whatever, except the fraud of his counsel, that said appeal was dismissed by this court, for not filing the printed record on appeal, and his counsel, keeping him in ignorance, afterward sought to reinstate said appeal, which application was denied; that as soon as Jones learned said facts without any laches, he sought, through other counsel, to obtain this court’s permission to make another application, which application was denied by this court; that on account of said fraud of Jones’ counsel, and the further fact that said counsel is entirely financially irresponsible, and Jones is without any other remedy and has been deprived, without fault on his, part, of his day in court, he thereupon brought this suit. In his complaint, Jones avers alleged fatal errors in the ruling of the trial court in the original suit, to wit, the failure to find facts warranting the judgment; that defenses existed fatal to any possible recovery, and a discovery of those facts was made since said judgment; that the judgment is too indefinite and uncertain for enforcement; that it was contrary to the overwhelming weight of evidence and rules of law applicable thereto; that no lawful determination could be had in that action without the presence of other parties, and that the court was without jurisdiction to determine any of the questions involved in said action or of the parties having the sole right to assert an interest in the subject matter thereof.
The complaint also sets forth various federal questions involved in the controversy, to wit, that the subjects involved are of maritime jurisdiction, of which the state district court has no jurisdiction, and that said .judgment is void; that all the rights claimed by Jones were exercised under the United States statutes, law and usages, and any decision denying such rights is a decision against the validity of the authority so exercised; that the decision, in so far as it assumes the right to interfere with the dominion of the United States over said pier, or of Jones’ right therein derived from the United States, or decreeing to Vanes any rights therein, and in the land to which said pier is attached, is without jurisdiction, either as to persons or property, and that either said judg[361]*361ment wbieh this action seeks to vacate, or any decision against the vested rights claimed by Jones under the United States statutes thereof, in that it is against the validity of said statutes and dominion of the United States, and deprives Jones of his property without due process of law; denies to Congress the right to regulate commerce; denies to Jones the privileges and immunities guaranteed to citizens of the several states, and the equal protection of the law thereof, and denies to Congress the right to make needful rules and regulations respecting the territory or property belonging to the United States.
The prayer of the complaint is for an injunction restraining the enforcement of said judgment and to vacate the same, and to so far open the same as to permit Jones to come in and urge his proper defenses. The complaint is accompanied by the affidavit of Jones, who reaffirms the allegations of the complaint and avers that said judgment is necessarily an interference with a right of navigation of the navigable waters of the United States, and with foreign and domestic commerce, as well as with the proper handling of the United States mails, and avers that unless this court interferes in equity, he is without remedy. He therein seeks to explain and excuse his failure to allege in the answer in the former suit, any of the faets which are alleged in the complaint in this and avers that no final determination of the questions involved can be had unless he is relieved from said former judgment.
Jones’ application for an injunction herein was also fortified by an affidavit of John W. Strack, a civil engineer, showing that he had verified the high-water and low-water marks of the river, as well as the road locations leading thereto, and that the whole territory in dispute is below high-water line, and within lands platted and dedicated to the public by Vanes’ predecessor in interest. Said affidavit is corroborated by a map drawn by said civil engineer, showing the survey made by him. Upon filing the complaint, the district court granted a temporary injunction with an order to show cause why it should not be continued. Pending the motion to con[362]*362tinue the injunction, the state of Idaho filed and served the complaint in intervention, alleging title to the land between high and low water marks of the Pend d’Oreille river.
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SULLIVAN, J.
— This action was brought to vacate a judgment in favor of the respondents and against the appellant Jones. Said judgment was entered cn the eleventh day of May, 1903, and the said Jones was commanded to remove a certain wharf in the Pend d’Oreille river. The appellant Jones will hereafter be referred to as Jones, and respondents will be referred to as Vanes.
The dispute in this action relates to a pier or landing-place within the navigable waters of the Pend d’Oreille river, which is a navigable river deriving its waters from the mountains of British Columbia and Montana. As a navigable river it flows through a part of the state of Idaho, into and across a part of the state of Washington, thence via British Columbia [359]*359and the Columbia river to the Pacific Ocean. The shore end of the said pier and landing in dispute is at the point on the river bank between high and low water marks and on ground claimed by Jones to belong to the state of Idaho; that is, it is the bed of a navigable stream. The state of Idaho intervened in this action and by its complaint in intervention it asserts ownership to the bed of said river on which said pier stands. It also alleges the issuance of a license by the state to Jones in 1902, permitting said Jones to erect said pier. It is alleged that the whole of said pier is submerged at ordinary high water. The shore end of said pier abuts or is on a square or plaza for a street leading on the county road to the landing, which road, it is alleged, was platted and dedicated to the public by Vane’s predecessor in interest, prior to Vanes’ acquiring any interest in said land. It is also alleged that the dedication of that portion of the square and street below high-water mark covered land to which the dedicator has no title, as it is averred said title was in the state; the title to the upland was derived by Vanes’ predecessors by patent from the United States, and the patent limited the number of acres granted, which were all above high-water mark. Jones, since 1889, had been engaged in st-amboat navigation on said river in Idaho and Washington, carrying mails, passengers and general merchandise, and said pier is the Idaho terminal of his boats, and it is alleged that he built and owned said pier, and that he derived his right to build and maintain the same by permit from the United States, and by a license from the state of Idaho, upon the landing-place; all of which rights attached and were exercised many years before Vanes acquired any interest in the adjoining upland, and it is averred that Vanes never had any interest in the strip of land between high and low water marks or in the bed of said river. That said landing is connected with the public road, which existed prior to the government survey, and is recognized on said survey, which survey was long prior to the platting of said land by Vanes’ predecessor. Jones duly appealed to this court from the judgment which this action is brought to vacate, and it is alleged that with[360]*360out his knowledge, and for no fault of his, and for no cause whatever, except the fraud of his counsel, that said appeal was dismissed by this court, for not filing the printed record on appeal, and his counsel, keeping him in ignorance, afterward sought to reinstate said appeal, which application was denied; that as soon as Jones learned said facts without any laches, he sought, through other counsel, to obtain this court’s permission to make another application, which application was denied by this court; that on account of said fraud of Jones’ counsel, and the further fact that said counsel is entirely financially irresponsible, and Jones is without any other remedy and has been deprived, without fault on his, part, of his day in court, he thereupon brought this suit. In his complaint, Jones avers alleged fatal errors in the ruling of the trial court in the original suit, to wit, the failure to find facts warranting the judgment; that defenses existed fatal to any possible recovery, and a discovery of those facts was made since said judgment; that the judgment is too indefinite and uncertain for enforcement; that it was contrary to the overwhelming weight of evidence and rules of law applicable thereto; that no lawful determination could be had in that action without the presence of other parties, and that the court was without jurisdiction to determine any of the questions involved in said action or of the parties having the sole right to assert an interest in the subject matter thereof.
The complaint also sets forth various federal questions involved in the controversy, to wit, that the subjects involved are of maritime jurisdiction, of which the state district court has no jurisdiction, and that said .judgment is void; that all the rights claimed by Jones were exercised under the United States statutes, law and usages, and any decision denying such rights is a decision against the validity of the authority so exercised; that the decision, in so far as it assumes the right to interfere with the dominion of the United States over said pier, or of Jones’ right therein derived from the United States, or decreeing to Vanes any rights therein, and in the land to which said pier is attached, is without jurisdiction, either as to persons or property, and that either said judg[361]*361ment wbieh this action seeks to vacate, or any decision against the vested rights claimed by Jones under the United States statutes thereof, in that it is against the validity of said statutes and dominion of the United States, and deprives Jones of his property without due process of law; denies to Congress the right to regulate commerce; denies to Jones the privileges and immunities guaranteed to citizens of the several states, and the equal protection of the law thereof, and denies to Congress the right to make needful rules and regulations respecting the territory or property belonging to the United States.
The prayer of the complaint is for an injunction restraining the enforcement of said judgment and to vacate the same, and to so far open the same as to permit Jones to come in and urge his proper defenses. The complaint is accompanied by the affidavit of Jones, who reaffirms the allegations of the complaint and avers that said judgment is necessarily an interference with a right of navigation of the navigable waters of the United States, and with foreign and domestic commerce, as well as with the proper handling of the United States mails, and avers that unless this court interferes in equity, he is without remedy. He therein seeks to explain and excuse his failure to allege in the answer in the former suit, any of the faets which are alleged in the complaint in this and avers that no final determination of the questions involved can be had unless he is relieved from said former judgment.
Jones’ application for an injunction herein was also fortified by an affidavit of John W. Strack, a civil engineer, showing that he had verified the high-water and low-water marks of the river, as well as the road locations leading thereto, and that the whole territory in dispute is below high-water line, and within lands platted and dedicated to the public by Vanes’ predecessor in interest. Said affidavit is corroborated by a map drawn by said civil engineer, showing the survey made by him. Upon filing the complaint, the district court granted a temporary injunction with an order to show cause why it should not be continued. Pending the motion to con[362]*362tinue the injunction, the state of Idaho filed and served the complaint in intervention, alleging title to the land between high and low water marks of the Pend d’Oreille river. It further alleged that the state had granted a license to Jones to use said land for said pier and landing purposes. The Yanes demurred to the complaint upon two grounds. 1. That it failed to state facts sufficient to constitute a cause of action; and 2. That the action was barred by a former judgment involving the same subject matter. Yanes also made a motion to strike out the complaint in intervention filed by the state. On the hearing of the order to show cause for a continuance of the injunction, the Yanes interposed said demurrer and motion, and nothing else, and the only questions discussed at the hearing were the questions raised by them. The court sustained the motion to strike out the complaint in intervention on behalf of the state, sustained the demurrer to the complaint, awarded judgment dismissing the action, and for costs. From those orders and that judgment, Jones and the state of Idaho appealed.
The writer of this opinion is of the view that the court erred in sustaining the demurrer to the complaint. As I view it, the complaint states a perfect cause of action tor relief in equity. The -ou.t also erred in striking out the complaint in intervention of the state. There is no question in my mind but that a court of equity may restrain a judgment at law upon proper allegations. The principle is stated in section 875, Story’s Equity Jurisprudence, as follows: “The theory of equitable interference with judgment is that from certain equitable circumstances, of which a court of equity has cognizance, it is against conscience that the party should proceed. ’ ’ And in section 884 it is stated: “There is no pretense to assert the jurisdiction upon any of the ordinary grounds of accident, mistake, fraud or confidence. It stands upon the more enlarged principle of general justice ”
In People v. Mayor etc., 11 Abb. Pr. 66, where the eourt had under consideration the question as to whether a court of equity would interfere with a judgment at law in cases only where the insolvency of the attorney is shown, it is stated: [363]*363“The rule confining relief to the client only to eases of the insolvency of the attorney, has nearly, if not entirely, become obsolete, and the rule adopted to give relief to the party where the act was unauthorized. In Sharpe v. Mayor etc., Justice Mullin says: 'The recent and, in my opinion, the more just practice is for the court to relieve the client, without reference to the responsibility of the attorney, where a proper case for granting relief is established. There is no justice in permitting one party to obtain an undue advantage over another through the neglect or misconduct of that other’s attorney. Courts of law are not to be used by parties in perfecting, through the forms of law, the ruin of a party who has employed a negligent or unworthy attorney.’ ” (See Ramsey v. Erie R. R. Co., 45 N. Y. 637; Little Rock etc. Co. v. Wells, 61 Ark. 354, 54 Am. St. Rep. 216, 33 S. W. 208, 30 L. R. A. 560.) In footnote at page 221 (54 Am. St. Rep.), it is stated: “In every case in which application is made to a court of equity by an independent suit for relief against a judgment or other decision, it is incumbent on the complainant to establish: 1. That he has lost a cause of action or of defense, or some part thereof; 2. That such loss occurred either because the court in the former proceedings or action was not competent to hear it and to grant relief thereupon, or because he was prevented from presenting it or having it properly considered, either through fraud, accident, mistake or some other sufficient ground for the interposition of equity; and 3. That unless he secures relief in equity, he will be without any adequate remedy. (Headley v. Bell, 84 Ala. 340 [4 South. 397] ; Harding v. Hawkins, 141 Ill. 572, 33 Am. St. Rep. 347 [31 N. E. 307]; Ratliff v. Stretch, 130 Ind. 282 [30 N. E. 30]; Whittaker v. Wickersham, 5 Del. Ch. 187; Luinger v. Glenn, 33 Neb. 187 [49 N. W. 1128]; Prockter v. Pettit, 25 Neb. 96 [41 N. W. 131]; Phillips v. Pullen, 45 N. J. Eq. 5 [16 Atl. 9]; Yorke v. Yorke, 3 N. Dak. 343 [55 N. W. 1095].)”
I think the doctrine is well settled that a court of equity will interfere upon proper application and stay the enforcement of a judgment where it appears from the allegations of [364]*364the complaint that the trial court had no jurisdiction to enter the judgment. Especially is that true where it is shown that the attorney of the party against whom the judgment is entered has clearly betrayed his client. However, my associates are of the opinion that the allegations of the complaint are not sufficient to warrant a court of equity in interfering with the judgment sought to be set aside or annulled by this action; therefore the majority of the court holds that the judgment of the trial court must be affirmed.
AILSHIE. J.
— I have no fault to find with the principles of equity suggested by Justice Sullivan, but I am unable to see wherein appellant has made such allegations of fraud as to justify a court of equity in assuming jurisdiction and enjoining the enforcement of a judgment at law duly made and entered.
The appellant has had his day in court, and the judgment entered against him has become final and is the law in all subsequent proceedings between the same parties in reference to the same subject matter. I think the complaint destitute of such allegations of fraud as to warrant equitable interference. Equity should not override the law, but assist and supplement it. The judgment of the trial court will be affirmed. Costs awarded to the respondents.
Stockslagax, C. J., concurs.