Tuttle v. Tuttle

181 N.W. 898, 48 N.D. 10, 1921 N.D. LEXIS 2

• Court: North Dakota Supreme Court
• Decided: January 29, 1921
• Status: Published

Opinions

Christianson, J.

In this action the plaintiff seeks to recover damages in the sum of $300,000, which she alleges she has sustained by reason of a certain judgment, wrongfully obtained against her by the defendant. The defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained, and the plaintiff has appealed.

The sole question presented on this appeal is whether the trial court was correct in ruling that the complaint did not state facts sufficient to constitute a cause of action. The substance of the complaint is as follows: That on and long prior to October 23, 1907, the plaintiff was the wife of the defendant; that on or about that date the defendant, claiming to be a resident of the state of North Dakota, commenced an action in divorce against the plaintiff in the district court of Burleigh county, in this state, —alleging as grounds of divorce extreme cruelty and desertion; that on being served with the papers in such divorce action, the-plaintiff employed three firms of attorneys, one in Chicago, Illinois, one at Jamestown, North Dakota, and one at Bismarck, North Dakota; that said attorneys in due time, in her behalf, interposed an answer denying the averments of the complaint, and alleging by way of cross complaint and counterclaim that the defendant had been guilty of extreme cruelty towards the plaintiff, and had wilfully and without cause continued to live apart from her since July, 1905; that in said cross complaint and counterclaim it was further alleged that the plaintiff was without means; that the defendant was possessed of property of the value of about $1,000,000; that all of said property had been accumulated during the married life of plaintiff and defendant; that in said answer and cross complaint the plaintiff prayed as relief “that she be granted temporary alimony during the progress of said action, to be used as a means to pay counsel fees and procure the evidence necessary to properly defend the action brought by defendant, and to prosecute the counterclaim and cross complaint interposed by plaintiff herself; that she be granted an absolute divorce, and that she be awarded her just and equitable part of the property accumulated by the plaintiff and the defendant, and for such other and further relief as to the court seems just and equitable.” That at the time of the service of said answer, and at the time said divorce action was at issue, plaintiff was prepared with strong, competent, and credible evidence to substantiate all — the allegations of said answer, counterclaim, and cross complaint; that all of said allegations were true; “that said action in divorce was fully at issue and came regularly on for trial at Bismarck, North Dakota, on the 8th day of December, 1908, before” the “then presiding judge of said district court; and that plaintiff was ready for trial and present at said date with her attorneys as aforesaid. Depositions of a number of witnesses in support of the allegations of plaintiff’s counterclaim and cross complaint in said action had been taken and filed, and there were present at said trial a number of other witnesses on plaintiff’s behalf. Commencing on said 8th day of December a. d. 1908, for a period of four days, said trial proceeded, and plaintiff’s witnesses were carefully examined and all material information known to them presented to the court. A number of witnesses were called and examined in defendant’s behalf, and on or about the nth day of December, 1908, the entire case was submitted to said Judge Winchester for determination

That prior to said trial the defendant had wilfully, fraudulently, and unlawfully colluded with, and corrupted and bribed, the presiding judge to decide and determine the material issues in the action, in defendant’s favor; that prior to such trial the defendant had paid to said judge the sum of $1,500, and that it had been arranged and agreed between said defendant and said judge that, upon the conclusion of the trial, a decree should be entered in favor of the defendant. That the said defendant had also approached, tampered with, and influenced W. F. Cochrane, one of plaintiff’s attorneys, to disparage plaintiff’s cause after the decision of the trial court, and to advise the plaintiff not to appeal from said decree. That at the conclusion of the trial the judge, acting in accordance with the understanding between him and the defendant, made findings of and conclusions of law, and ordered the entry of decree in said action, in which it was found that all the allegations of defendant’s complaint were abundantly supported by the evidence; that his application for a divorce was sustained upon all the grounds alleged in the complaint, and that de fendant should be granted a divorce upon the grounds stated in his complaint. That, “in accordance with said findings of fact, conclusions of law, and order for judgment made and entered as aforesaid, a decree of said district court was entered of record on the 2jth day of January a. d. 1909, and is now of record therein, wholly unreleased, unmodified, and unchanged!’ That the evidence offered by the plaintiff on the trial of such divorce action “was in al'l respects abundantly sufficient not only to refute and defend against disputed allegations of defendant’s complaint, but to fully maintain the allegations of plaintiff’s counterclaim and cross •complaint;” that in deciding the case the trial judge, influenced by defendant’s corrupt bargaining, disregarded the evidence introduced by the plaintiff, and gave no weight or credit thereto, and made his findings, conclusions, and order for judgment not in accordance with the'weight of the evidence or the right and justice of the cause, but in conformity with his previous arrangement with the defendant. That after the entry of said decree her attorney, one W. F. Cochrane, was left in entire charge of the case; that said attorney disparaged and discouraged an appeal; and that when an appeal to the supreme court was ordered by the plaintiff, said attorney, “in conformity to the corrupt influence, promises, and bribery of said defendant, proceeded so indifferently and in a manner so slack and negligent” that said appeal was dismissed by the supreme court, without a review of the merits of the said appeal. “That if said action had been tried and disposed of justly and impartially, without the exercise of undue influence upon the presiding judge of said court, or upon the plaintiff’s attorney, she has reason to believe and does believe that, properly placed upon a preponderance of the evidence introduced, plaintiff would have been given a divorce from said defendant, and awarded a proportion of said property accumulated during the marriage of plaintiff and defendant, to the sum of at least three hundred thousand dollars ($300,000) ; that the ground for divorce in her favor set out in her counterclaim and cross complaint would have been sustained, and the testimony of plaintiff and of her witnesses would have been held to be reputable, credible, and truthful.” “That by the findings of fact of said court, its conclusions of law, and its order for judgment, induced by the wrongful and fraudulent conduct of said defendant, plaintiff has been caused great humiliation, shame, and insult; has been caused to suffer great distress of mind; has been deprived of valuable property rights and interests in the value of the sum of three hundred thousand dollars ($300,000),- and has sustained loss, deprivation, and injury to her damage in said sum.” “That said wrongful, fraudulent, and collusive conduct of defendant and his bargaining, tampering with, and bribing the presiding judge upon said trial and the attorney acting for plaintiff, was not brought to the notice or knowledge of plaintiff until about the 28th day of January a. d. 1919; and that with all diligence, after being credibly informed of the circumstances constituting said fraud and collusion, plaintiff brought this action for the purpose of asserting her rights against said defendant and obtaining damages for the wrong, loss, and injury done her by said defendant, under the circumstances hereinbefore set forth.

“Wherefore plaintiff prays judgment against said defendant for the sum of three hundred thousand dollars ($300,000), with interest thereon at the rate of 6 per cent per annum from the 28th day of January, 1909, together with her costs and disbursements of this action.”

We are of the opinion that the.court was correct in sustaining the demurrer. From the averments of the complaint it appears that plaintiff’s cause of action, is predicated upon the alleged wrongful rendition of a judgment against her. She claims that the evidence adduced entitled her to judgment, and that by reason of the misconduct of the trial judge an improper judgment was rendered; that such misconduct was occasioned by the acts of the defendant, and that by reason thereof she has been damaged in the sum alleged in the complaint. From the averments of the complaint, it appears, however, that the judgment which the plaintiff seeks to attack was rendered after trial by a court having jurisdiction of the subject-matter and of the parties.

It is elementary that a judgment rendered by a court having jurisdiction of the parties and the subject-matter, unless reversed or annulled, in some proper proceeding, is not open to contradiction or impeachment, in respect to its validity, verity, or binding effect, by parties or privies, in any action or proceeding, 23 Cyc. 1055.

Freeman in his work on Judgments, says: “A party to a judgment feeling himself aggrieved thereby may, in a proper case, either move that it be vacated, or prosecute an appeal or writ of error, or maintain a suit in equity to enjoin its enforcement. These, unless the judgment is void on its face, are the only remedies open to him, and if he resorts to neither, or resorting to any or all he is denied relief, he cannot avoid the judgment, when offered in evidence against him, by proving that it ought not to have been pronounced, and was procured by fraud, mistake, perjury, or collusion, or through some agreement entered into by the prevailing party, and which he neglected or refused to perform.” Freeman, 4th ed. § 334.

“The settled policy of the law forbidding that a matter once adjudicated shall be again drawn in issue while the former adjudication remains in force does not permit the prosecution of an action for obtaining a judgment by false and fraudulent practices, or by false and forged evidence. Neither can a party against whom judgment has been recovered sustain an action against his adversary and the witnesses for damages occasioned by their conspiring together and procuring a judgment by fraud or perjury, as long as the judgment remains in force and unreversed; because the charges made in the second action are conclusively negatived by the former adjudication.” Freeman, Judgm. 4th ed. § 289. See also 23 Cyc. p. 1066.

In considering the effect of a judgment which had been pleaded as a defense in an action for malicious prosecution (and in referring to the rule that a judgment, by a court having jurisdiction of the parties and of the subject-matter, in favor of the plaintiff, is sufficient evidence of probable cause for the institution of the action in which the judgment is rendered, even though the judgment is subsequently reversed by an appellate tribunal), the supreme court of the United States, said: “The rule, therefore, has respect to the court and to its judgment, and not to the parties, and no misconduct or demerit on their part, except fraud in procuring the judgment itself, can be permitted to detract from its force. It is equally true and equally well settled in the foundations of the law that neither misconduct nor demerit can be imputed to the court itself. It is an invincible presumption of the law that the judicial tribunal, acting within its jurisdiction, has acted impartially and honestly. The record of its proceedings imports verity; its judgments cannot be impugned except by direct process from superior authority. The integrity and value of the judicial system, as an institution for the administration of public and private justice, rests largely upon this wholesome principle.” Crescent City L. S. L. & S. H. Co. v. Butcher’s Union, S. H. & L. S. L. Co. 120 U. S. 141, 159, 30 L. ed. 614,621, 7 Sup. Ct. Rep. 472.

When a court of general jurisdiction acts within its jurisdiction, every presumption is in favor of its judgment. This includes the presumption that such courts act rightly and in conformity to law. In other words, where the decree is such a one as the court had jurisdiction to render, the presumptions are all in favor of its regularity and validity until vacated by some proper proceeding instituted directly for the purpose or avoiding or correcting it. 15 R. C. L. pp. 875, 876; 23 Cyc. 1215 et seq.

Appellant contends that under the recent decision of this court in Shary v. Eszlinger, 45 N. D. 133, 176 N. W. 940, a judgment may be impeached, on the ground of fraud, in any proceeding. The portion of the opinion upon which this contention is predicated is the following quotation from Hutchins v. Lockett, 39 Tex. 165: “That a judgment rendered by a court of competent jurisdiction cannot be attacked in a collateral proceeding is a rule of almost universal application. Nevertheless a judgment may be impeached in any proceeding upon the ground of fraud or satisfaction. It is said ‘that the maxim that fraud vitiates everything applies to judgments’ (Freeman, Judgm. p. 90); and this rule may be applied to judgments affected by fraud, whether the fraud arises at the time of or after the rendition of the judgment. The court has only to determine that a judgment is founded in fraud, in order to authorize its impeachment as a nullity.” 39 Tex. 159.

The question presented in Shary v. Eszlinger was, What faith and credit must be accorded in this state to a judgment rendered by a district court in Texas? In order to determine that question, it became necessary to ascertain what effect was given to such judgment in the state of Texas. Or, as stated in the decision in Shary v. Eszlinger, the question presented in that case “resolved to this, — Would the facts set forth in the answer, and covered by the proof, be sufficient to authorize the courts of Texas to set aside the judgment or enjoin the enforcement thereof?” The quotations from Hutchins v. Lockett, and from other Texas decisions, were set forth for the purpose of showing what force and effect was given in Texas to judgments rendered in that state. By so quoting, we did not necessarily approve of what was said in the Texas decisions, it was not for 'us either to approve or disapprove thereof. We were concerned only with ascertaining what the law of Texas was as regards the force and effect of judgments rendered by the courts of that state. The quotation, from Freeman on Judgments, contained in Hutchins v. Lockett, was taken from that portion of Freeman’s work which deals with the vacating judgments by motion, and hence does not support the contention that a judgment procured by fraud is subject to collateral attack by the parties thereto or those in privity vyith them. On the contrary, that noted author, elsewhere in his work, lays down the rule: “The parties to an action, and the persons in privity with them, cannot collaterally attack or impeach a judgment for fraud; and any attack must be regarded as collateral which is made in ‘any proceeding which is not instituted for the express purpose of annulling, correcting, or modifying’ a judgment or decree.” Freeman, Judgm. 4th ed. § 336.

In Shary v. Eszlinger, we found that the laws of Texas permitted a judgment obtained by fraud to be vacated or the enforcement thereof to be enjoined. 176 N. W. 939. And we concluded that the requirement of the Federal Constitution, “that full faith and credit shall be given in one state to the judgments obtained in another, will not prevent the courts of this state, in which legal and equitable rights and remedies are administered in one court and in one form of action, from permitting an equitable defense to be interposed against a judgment obtained by fraud in another state, where the courts of the state where the judgment was rendered are authorized to vacate or enjoin the enforcement of a judgment obtained by fraud.”

In this case the plaintiff seeks to attack the judgment in the divorce action collaterally. It is contended that the demurrer admits that the judgment is wrong, and that it was obtained by the wrongful and unlawful practices set forth in the complaint. This contention ignores the fundamental rules applicable to judgments. The complaint shows that the judgment in question was rendered by a court of general jurisdiction, in an action duly pending and brought to trial before it; that the court had unquestioned jurisdiction of the parties to, and the subject-matter of, the controversy determined by the judgment; that the judgment was rendered more than ten years ago, and that it has not been set aside or corrected in any proceeding provided by our laws for the vacation or correction of judgments. The averments in the complaint charging misconduct and wrongful acts on the part of the trial court contradict the basic provisions of the judgment. The very essence of plaintiff’s action is that the judgment is wrong, — that the facts required the rendition of a judgment different from that which was rendered. The judgment cannot be thus impeached. As long as it stands, it imports absolute verity as to every proposition of law and fact essential to its existence against the parties to it. Schultz v. Schultz, 136 Ind. 323, 43 Am. St. Rep. 320, 36 N. E. 126; Freeman Judgm. 4th ed. § 289; VanFleet, Collateral Attack, § 550. Hence, the allegations of misconduct on the part of the trial court and the defendant are for all purposes the same as though they were not contained in the complaint. So far as this action is concerned, they are conclusively denied, and said to be without foundation in fact or in law, by the other allegations in the complaint, which allege that the judgment was rendered by a court of competent jurisdiction, having jurisdiction of the parties and the subject-matter. While that judgment remains in full force and effect, the losing party “can never leap over it, treating it as void, and litigate her right anew, by commencing an action, as if it had not been made, and in a collateral manner attack its validity.” VanFleet, Collateral Attack, § 550; Freeman Judgm. 4th ed. §§ 289, 334, 337; 15 R. C. L. pp. 875, 876.

The trial court was clearly right in sustaining the demurrer. The order appealed from is affirmed.

Robinson, Ch. J., and Bronson and Birdzeia, JJ., concur.