Leeker v. Leeker

202 P. 397, 23 Ariz. 170, 1921 Ariz. LEXIS 103

• Court: Arizona Supreme Court
• Decided: December 10, 1921
• Docket: Civil No. 1886
• Status: Published

Opinion

ROSS, C. J.

(After Stating the Facts as Above.) The appellant, who was the defendant below, appeals from the order granting a motion to vacate and set aside the judgment and the court’s refusal to vacate the order setting aside the judgment. The appellant makes twenty assignments of error, covering four or five propositions. He first contends that the motion to vacate the judgment, not having been filed within ten days after the rendition thereof, came too late, and that the court had no power to grant the motion under the provisions of the statute regulating motions for new trial.

A party against whom judgment has been rendered must pursue one of the modes provided by statute, if he feels himself aggrieved, to have it modified, vacated, or set aside, and he must do so within the time, and in the manner, stipulated in the law. The motion in this case cannot perform the functions or confer the rights of a motion for new trial, as it was not filed within ten days after the rendition of judgment. Paragraph 590, Civ. Code; Allan v. Allan, 21 Ariz. 70, 185 Pac. 539; Red Rover Copper Co. v. Hillis, 21 Ariz. 87, 185 Pac. 641; Peer v. O’Brien, 21 Ariz. 106, 185 Pac. 644; Daggs v. Howard Sheep Co., 16 Ariz. 283, 145 Pac. 140; Chenoweth v. Prewett, 17 Ariz. 400, 153 Pac. 420.

The motion was filed on the fiftieth day after the judgment was rendered, and within the time fixed in paragraph 600, Civil Code. But it was not passed upon by the court until some days after the expiration of six months from the rendition of the judgment. Granting that the causes set forth in motion to vacate, and found by the court to exist, constitute “good cause shown” it is insisted by appellant that the court, at the time the order was made setting aside and vacating the judgment, had lost jurisdiction to act, and that the order was. therefore void. It is the contention that, not only should the motion to vacate the judgment under paragraph 600 be made within six months after the making or entry of judgment, but the order sustaining such motion should be made within the six months. This, it is claimed, is the meaning and sense of the statute, and appellant, to sustain such a contention, cites the following cases: Sargent v. Kindred, 5 N. D. 472, 67 N. W. 826; Nicklin v. Robertson, 28 Or. 278, 52 Am. St. Rep. 795, 42 Pac. 993; McKnight v. Livingston, 46 Wis. 356, 1 N. W. 14; Granse v. Frings, 46 Minn. 352, 49 N. W. 60. These cases certainly support that view.

The language employed in paragraph 600 has reference to the time within which the court may modify or vacate the judgment, and not to the time its jurisdiction is invoked to do so. It says:

“The court may [at] any time within six months after the making or entry of any judgment . . . for good cause shown, modify or set aside its judgments. ...”

The preceding paragraph, 599, authorizes the court to extend or enlarge the time within which certain things may be done but provides that in no event shall the time in which to take or perfect an appeal in a civil action be extended. The two paragraphs, 599 and 600, make up chapter 20, title 6, to the Civil Code. They are quite as intimately related to each other as if they were but one paragraph or section. Indeed they were taken from section 7786, Greneral Statutes of Minnesota of 1913, with but slight changes.

If a court may hold a motion to modify or vacate a judgment for more than six months before passing upon the same, he may do what paragraph 599 expressly, and'what paragraph 600 impliedly, forbids. If a party dissatisfied with a judgment against him, by filing a motion to have the same vacated, may confer jurisdiction upon the court to pass upon the same one day after the six months has expired, the jurisdiction would exist twelve months thereafter, and thus the aggrieved party could suspend the finality of the judgment indefinitely, and long beyond the period allowed by the statute in which to perfect an appeal from a judgment. In Gallagher v. Irish-American Bank, 79 Minn. 226, 81 N. W. 1057, the court had before it the same question we have here, and it was there held that the court lost jurisdiction to pass upon the motion after the time for appeal had expired. It was there said:

“We cannot believe that it was intended by the legislature, in the amendment referred to [par. 1786], to leave open until the limitation upon the judgment itself had run the means of reversing or setting it aside, or to effectually destroy the effect of the provision of law which limits the time within which appeals from judgments may be taken; for where a judgment that has settled questions of the highest im-. portance could not, by reason of the limitation upon the time for appeal, be reviewed, if such a rule obtained, it could easily, upon a motion supported upon eco parte affidavits, be modified or set aside. The effect of such a ruling would be practically to nullify or repeal the statutory limitation of time for taking appeals from judgments, and as a precedent result in such confusion in practice, and work such havoc to vested rights accruing under the highest judicial sanction known to the law, that we cannot approve of so obviously unjust and illogical a conclusion; and we hold that, when the effort to modify or amend the judgment in this case was made, the time to appeal having expired, it was too late to grant the relief sought. ’ ’

We conclude that the legislative intent was that the motion to modify or vacate a judgment under paragraph 600, supra, must not only be made within the six months, but that the court’s jurisdiction to pass upon the same is limited to that time.

. It is next contended by the appellant that, since the appellee has no standing as the movant for a new trial under paragraph 584, Civil Code, nor as the movant to vacate the judgment under paragraph 600, the only statutory remedies available to an aggrieved party, her motion to vacate should have been denied. The appellee’s answer to this contention is that every court of record has the inherent common-law power to vacate and set aside judgments obtained through fraud, and that this rule applies to judgments obtained in divorce as well as other cases. We think it well settled, as a general proposition, that fraud vitiates everything that it comes in contact with, and that an innocent party who has suffered thereby may, by acting promptly in accordance with the forms of the law, and before any rights of third persons are involved, ordinarily secure relief therefrom. In this case it cannot be said that the appellee was guilty of any láches. She filed her motion to vacate and set aside the judgment fifty days after the same was rendered, and long before, the expiration of the six months allowed her in which to show good cause for its vacation. 1 Black on Judgments, second edition, section 321, says:

“The power to set aside judgments for fraud or collusion, though expressly granted by statute’ in many of the states, is not dependent upon legislative recognition. ° It is a common-law power, inherent in all courts of record, and may be exercised after the expi-, ration of the term in which the judgment was rendered on the application of the party injured.”

See Freeman on Judgments, fourth edition, section 99. The last author says: /

“Even in the case of decrees of divorce they have been vacated on motion for fraud, nor have the courts .hesitated to do so even after marriages have been contracted in reliance upon the fraudulent decree, and one of the parties was innocent of all complicity in or knowledge of the fraud.”

See lfBlack on Judgments, section 320.

This statement of the law, we think, is generally recognized to be correct. We find it repeatedly announced in the text-books and in the cases. We think it is a salutary rule, both for the protection of the court and litigants. The difficulty is in its application. Most of the cases in which judgments have been vacated for fraud, our investigation discloses, are cases in which, the prevailing party has been guilty of the fraud. The appellant cites us to a great number of cases of that character in his brief, and he insists that the rule of the law is that, if the prevailing party has been honest and fair in the litigation, the judgment should never be vacated, even though the court may have been imposed upon or the opposite party tricked or defrauded. This proposition is not put up to us in these words, but that is its effect. The rule contended for by the appellant is doubtless the one that has generally been announced, but like all other rules it has its exceptions. It is said:

“If an attorney corruptly sells out his client’s interests to the other side a judgment thus obtained may be set aside on the charge of fraud.” Section 344, Black on Judgments; United States v. Throckmorton, 98 U. S. 61, 25 L. Ed. 93 (see, also, Rose’s U. S. Notes).

Haverty v. Haverty, 35 Kan. 438, 11 Pac. 364, is very similar to the instant case. The attorney for the defendant acquiesced in the judgment for the plaintiff on condition that plaintiff pay into the court alimony in the sum of $100. It appeared that the defendant was not present at the trial, although he had been notified of the setting of the case. He had furnished his attorney no list of witnesses. When the case was called the attorney was not prepared to defend it. He did not cross-examine the plaintiff’s witnesses. He stated that he applied the $100 in the payment of a note he had signed with the defendant as surety and a livery bill owed by defendant and the balance on his fee. The court said, after discussing the duty of an attorney to his client, and after reviewing the evidence:

“Considering the evidence of this attorney, his failure to cross-examine the witnesses, the judgment rendered, we cannot say that such attorney acted in good faith towards his client. After his arrangement with Col. Burris [plaintiff’s attorney] it was his interest . that Mrs. Haverty should obtain her divorce. Thereby he realized $100. That interest was such, we think, as betrayed his judgment and endangered his fidelity. He certainly acted under a clear misapprehension of his professional duty. To such conduct we cannot give the sanction of this court. The practice of attorneys would be very impure, and possibly fraudulent, if we permitted things of this sort to be done. Upon the evidence produced, the judgment of the trial court should have been for the annulment of the decree of divorce.”

See, also, Graham v. Graham, 54 Wash. 70, 18 Ann. Cas. 999, L. R. A. 1917B, 405, 102 Pac. 891.

If it be true that the property settlement ‘agreed upon before the case came on for trial contemplated the payment of large attorneys’ fees to plaintiff’s New York attorneys, contingent upon defendant’s securing a divorce, it would seem that such attorney’s had “a strong financial interest” in failing to obey plaintiff’s instructions to fight divorce, and in desiring the dissolution of the marriage contract. Such interest would certainly betray their judgment and endanger their fidelity.

“An attorney owes to his client not only all the industry and application of which he is capable, but also, unshaken fidelity. He must be loyal in act and spirit to his client’s interests. His loyalty should be unquestioned, above suspicion, and beyond reproach, ’ ’ says Mr. Chief Justice HOETON in the Haverty case.

If an attorney’s fee is contingent upon the success of the adversary of his client, either in amount or time of payment, he is certainly not in a position to make the earnest, sincere fight for his client that the-' law and his duty require of him. Unfaithfulness of an attorney to his client in withdrawing from the case, or in pretending to defend his rights when in fact he so handles the base as to purposely lose it, has afforded grounds to set aside the judgment in the following cases: Nichells v. Nichells, 5 N. D. 125, 57 Am. , 33 L. R. A. 515, 64 N. W. 73; Pacific R. R. Co. v. Missouri Pac. Ry. Co., 111 U. S. 505, reading 520, 28 L. Ed. 498, 4 Sup. Ct. Rep. 583 (see, also, Rose’s U. S. Notes).

It is next objected that the evidence submitted on the motion to vacate does not support the findings of the court. In this case we feel like following the rule that we have usually adopted. The lower court had every advantage of personal contact and observation of all the parties and was certainly in a better position to determine what the facts showed than we are. That we, from a reading of the cold record, might have come to a different conclusion, we do not feel, would justify us in substituting our judgment for that of the person the law has designated to try and determine the facts.

It is also said that, inasmuch as the appellee accepted some of the benefits of the judgment before it was set aside, she should be estopped to deny its validity. This is the invocation of the general rule. Here the property involved, however, is community property. It belongs as much to one spouse as it does to the other. The law places it in the control of the husband during coverture, and constitutes him the medium through which the other spouse and the children are to. receive their support and maintenance. It seems that, whatever the appellee has received by virtue of the judgment, she would have been entitled to as one of the partners in the community, except perhaps the matter of attorneys’ fees. Whatever has been consumed in carrying on this unfortunate litigation out of the community property for the appellee doubtless is offset by the expenditures in that behalf by the appellant.

The order of the court vacating and setting aside its judgment and directing a new trial is affirmed.

MoALISTEE and FLANIGAN, JJ., concur.