
    Drury Laffoon, Appellant, v. E. O. Fretwell et al., Respondents.
    Kansas City Court of Appeals,
    January 10, 1887.
    Res Adjudicata — Case Adjudged. — The defendants, in their answer, pleaded the judgment of the Supreme Court of this state, in the case of Fretwell v. Laffoon, as res adjudicata. Held, that such judgment is res adjudicata as to all matters therein decided, and as to all other questions which could have been raised by the motion foi new trial in said case. Held, further, that the judgment, the collection of which is sought to be enjoined, was rendered in compliance with the mandate of the Supreme Court, and its 'collection cannot be enjoined on any ground that was, or could have been presented to the court in the proceeding in which the mandate was issued. Philips, P. J., dissents.
    
    Appeal from Cass Circuit Court, Hon. Noah M. Qtvan, Judge.
    
      Affirmed.
    
    Statement of case by tbe court.
    Tbe plaintiff, Drury Laffoon, was, on tbe eigbtb day' of May, 1878, summoned as garnishee in a case by attachment then pending in tbe circuit court of Cass county, in which tbe defendant, Fretwell, was plaintiff,' and one Ammerman and Daniel Hibler were defendants. On the nineteenth day of July, 1878, Laffoon answered, and on tbe twenty-third day of July, 1879, judgment was rendered against him upon bis answer. On tbe following day a motion for a new trial was filed and subsequently sustained, and Laffoon filed an amended answer'. Fretwell excepted to tbe action of the court and refused to further prosecute bis proceeding, whereupon the court dismissed the same for want of prosecution, and Fret-well sued out bis writ of error from tbe Supreme Court.
    
      ' The Supreme Court reversed the judgment of the •circuit court. Fretwell n. Laffoon, 77 Mo. 26. It ivas decided that the circuit court erred in setting aside the judgment and granting a new trial, and that the judgment on the answer against Laffoon, which had been set aside, wns properly rendered. The case was remanded with directions to proceed as indicated in the opinion. The effect of the opinion, as is conceded by counsel for the plaintiff in the present action, was a mandate to the circuit court to render judgment against Laffoon, on his original answer, as garnishee. In obedience to such mandate the circuit court, at its March term, 1883, so rendered judgment for $921.40; and Fretwell sued out-' execution thereon, and was proceeding to -enforce the-collection thereof by lévy and sale, when restrained by a temporary injunction herein.
    TJpon a-trial of this case the circuit court dismissed the plaintiff ’ s- bill, dissolved the temporary injunction and assessed ten per cent, damages against the plaintiff and his sureties. The plaintiff has appealed to this court.
    WoOLDEIDG-E & JL, ANIEL, with A. COMINGO aild Em-: met Philips, for the appellant.
    I. Courts of equity will generally relieve against judgments when rendered under mistake, surprise or fraud. Fraud in law is sufficient. Dobbs n. Ins. Co., 72 Mo. 189 ; Sauer n. Kansas City, 69 Mo. 46 ; Bresnahan 'o. Price, 57 Mo. 422 ; Danis n. Staples, 45 Mo. 567; Perry n. Biter, 37 Mo. 273 ; Matson v. Field, 10 Mo. 100 ;■ Lawrence n. Bank, 54 N. Y. 432; Thompson n. Tilton, 34 N. J. Eq. 306 ; Wingate n. Haywood, 40 N. H. 437; Barber n. Buckeyeser, 39 WIs. 590; Stanton n. Embry, 46 Conn. 65, 595 ; 2 Story’s Eq. Juris. (4 Ed.) sects. 885, 387 ; 1 High on Injunction, sects. 209, 210.
    II. It is only requisite for plaintiff to show that he had a good defence, and was prevented by. fraud, accident or mistake from presenting it. Taggart v. Wood, 
      20 Iowa, 236 ; Freeman v. Miller, 53 Texas, 372; 1 High on Injunction, sects. 113, 126. Relief in equity is not barred, unless plaintiff had a full and fair opportunity to be heard in his defence. 1 High on Injunction, sects. 179, 200; Dobbs v. Ins. Co., 72 Mo. 189; Thompson v. Tilton, 34 N. J. Eq. 306.
    III. The frauds that vitiate a judgment and warrant the granting of relief in equity, need not be actual, or intentional. It is sufficient if they are legal or constructive. Curren v. Fsty, 110 Mass. 544; 1 High on Injunctions, sects. 202, 203; 1 Story’s Eq. Juris, sects. 218, 219, 258, 259, 307, 313 ; 2 Story’s Eq. Juris, sect... 887. Equity will not tolerate fraud, either actual or constructive. Todd v. Wheeler, 1 Dana, 403; Powers,. BPr, v. Butler, Admir, 3 Green’s Eq. 465.
    IY, Mistakes and forgetfulness do not constitute negligence. Lyle v. Shinnebarger, 17 Mo. App. 66; Fralcer v. Little, 24 Kas. 598 ; Lewellen v. Garnett, 58-Ind. 442. The alleged mistake was not mutual, it is. true, but its correction will leave the defendants in statu quo. Matthews v. Kansas City, 80 Mo. 235.
    Y. The statutes of this state, and the decisions, forbade the rendition of judgment on the answer of the' garnishee (the plaintiff in this action), without the framing of an issue thereon. Sects. 2532, 2536, Rev. Stat.; McCanse v. McClure, 38 Mo. 410; Weil v. Tyler, 38' Mo. 558; Holton v. Railroad-, 50 Mo. 151; Bell v. Strow,. 59 Mo. 118.
    YI. The discretion of the lower court in granting a new trial cannot be reviewed except on application by mandamus. Seat. 23, article 6, Const. Mo.; Sects. 3672,, 3710, 3743, Rev. Stat.; Freeman on Judgments, sects. 118, 120 ; Hill v. Wilkins, 4 Mo. 86 ; Helm v. Bassett, 9 Mo. 52 ; Pratt v. Judge, 12 Mo. 194; Boyce v. Smith, 16 Mo. 317; Keating v. Bradford, 25 Mo. 86 ; Jjeahey v. Dugd,ale, 41 Mo, 518; Simpson v. Blunt, 42 Mo. 544; State ex rel. v. Adams, 12 Mo. App. 443; State ex rel., etc., v. Horner, 10 Mo. App. 307.
    
      R. O. Boggkess, Allen Glenn, and Railet & Burney, for the respondents.
    I. “Courts of equity originally interfered to grant relief against judgments at law, on account of the impossibility of obtaining relief at law by new trial, when, under the circumstances, the verdict ought not to con■clude the party. As the courts of law have extended their jurisdiction over the subject, courts of equity have withdrawn theirs from it. It is now the settled doctrine ■of the English courts of chancery not to relieve against a judgment at law on the ground of its being contrary tc equity, unless the party aggrieved was ignorant of the fact relied on as the ground of relief pending the suit, oi it could not have been received as a defence.” Powers’ Ex’r v. Blotter’s Adm’r, 4 N. J. Eq., 3 Green Ch. 465; 3 Pomeroy’s Eq. Jurisp., sects. 1364, 1365, and cases cited; Bateman v. Willoe, 1 Sch. and Lef. 201 : Smith d. Lowry, 1 Johns. Ch. 323; Fuller v. Little, 6S 111. 237 ; Barton v. Ilynson, 14 Ark. 32 ; Lynne v. Allen, .51 N. H. 245.
    II. All the facts set forth in plaintiff’s bill were known to him at the time, and either were or could'have been pleaded in the motion for a new trial in the case oi Fretwell v, Laffoon, garnishee of Daniel Hibler. The ■statute of this state (sect. 3704, Rev. Stat.) has in eases Wee the one at bar, entirely abrogated the chancery pro-needing, which formerly obtained. A court of equity will not interfere by injunction to restrain a judgment at law for causes, which, on a motion for new trial at law, had been held insufficient. . Watson v. Field, 10 Mo. 100 ; Heed’s Adm’r v. Hansard, 37 Mo. 199 ; 1 High on Injunction, sect. 166; 3 Pomeroy’s Eq. Jurisp., sect. 1364, 1365; Oengo d. Tatt, 36 Mo. 141; Heintrager d. Lumbar go, 54 Iowa, 604; Lynne v. Allen, 51 N. H. ■245.
    III. Where defendant has been personally served with process, he cannot enjoin the judgment against him, unless lie shows not only that it is inequitable to execute such judgment against him, but also that he could not have availed himself of his defence at law ; or, tha\ he was prevented by fraud or accident, without any fault.or negligence on his part. Matson v. Field & Cathcart, 10 Mo. 100; George v. Tutt et al., 36 Mo. 140-Y Reed’s Adm’r v. Hansard, 37 Mo. 199, et seg.; Miller et al. v. Bernecher, 46 Mo. 194; Marsh’s Adm’r v. Bast, 41 Mo. 493; Carolus v. Koeh, 72 Mo. 645 ; Shelbina Hotel Association v. Parker, 58 Mo. 327; Kelley v. Hurt, 74 Mo. 568, 571; Smith v. Sims, 77 Mo. 273 ; Shricker v,. Field el at., 9 Iowa, 366,. 871 ; Vilas v. Jones, 1 N. Y. 274; Stillwell v. Carpenter et al., 59 N. Y. 415, 422-3-4 ;■ Duncan v. Lyon, 3 Johns. Ch. 845, 351; Foster v. Wood, 6 Johns. Ch. 87; Floyd v. Jayne, 6 Johns. Ch.. 479; Railroad v. Titus et al., 27 N. J. Eq. 102, 106,109, 110; Holmes v. Steele, 28 N. J. Eq. 173; Ins. Co. v. Hoag son, 7 Cranch (U. S.) 332; Moore v. McGaha, 3-Term. Ch. 416, 417, 420 ; Fuller v. Little, 69 111. 229; Kann v. Strausberger, 71 111. 413; Higgins v. Bullock, 73 111. 205, and cases cited; Richmond Eng. Co. v. Robinson, 24 Gratt. (Ya.) 548 ; Paynter v. Evans, 7 B. Monroe, 420; Emerson v. TJdall, 13 Yt. 477; Fletcher v.. Warren, 18 Yt. 45; Warner v. Conant, 24 Yt. 351; Graham v. Stagg, 2 Paige Ch. 321; Bierne v. Mann, 5 Leigh (Ya.) 364 ; Meem v. Rucker, 10 Gratt. (Ya.) 506 ; BeUamy v. Woodson, 4 Ga. 175 ; Conway v. Ellison, 14 Ark. 360; Noble v. Butler, 25 Kas. 645-9; Henry v. The Bank of Salina, 5 Hill, 523; Slack v. Wood, 9-Gratt. (Ya.) 40, and cases cited; McLeod v. Lee, 17 Nev. 112; Wolfinger, Adm’r, v. Betz et al., 24 N. W. Rep.. (Iowa) 228; 2 Story’s Eq. Jurisp., sects. -887, 895, 896, 1572, and cases cited.
    IY. When a matter is finally determined in a'n action between the same parties by a competent tribunal,, it is to be considered at an end, not only as to what was determined, but also as to every other question which the parties might have litigated in the case. Petersine; 
      v. Thomas, 28 O. St. 596, 600, 601 ; Shepardson r>.. Cary, 29 Wis. 34 ; Phelan n. Gardiner, 43 Cal. 306 ; Bates v. Spooner, 45 Ind. 409; McLeod n. Lee, .17 Nev. 112; Thompson v. My ride, ■ 24 Minn. 9, 11; Harris v. Harris, 36 Barb. 93, 94, 95 ; Neil v. Tolman, (Oregon) 7Pac. Rep. 103, 106, et seq.; Jordan r>. Van Hpps, 85 N. Y. 427, 436; (Siemens v. Clemens, 37 N. Y. 73, 74; Railroad v. Lem, 17 Mo. App. 501, 507^ 508, and cases cited; Smith n. Nelson, 62 N. Y. 286, 288.
    V. The judgment of the Supreme Court having been pleaded by defendants in their answer is res adjudícala as to all matters therein decided, and as to all other questions which could have been raised under the motion for a new trial in said cause. See Fretwell n. Laffoon, 77 Mo. 26, et seq.; Chouteau v. Gibson, 76 Mo. 38, 44, 45, 46, 49, 50, 51 ; The State ex rel. Dixon v. Givan, 75 Mo. 516; Chouteau r>. Allen, 74 Mo. 56; Pomeroy r>. Benton, 77 Mo. 79, 80, et seq.; Shroyer v. Nideell, 67 Mo. 589 ; Armstrong v. The City of St. Lotois, 69 Mo. 310 ; Gamble *. Gibson, 19 Mo. App. 531'; Broom’s Legal Maxims, sect. 321. “ Nemo debet bis vexaripro una et eadem caiosaP
    
   Hall, J.

The defendants pleaded the judgment of .the Supreme Court, in the case of Fretwell v. Laffoon, in their answers as res adjudícala. Such judgment is res adjudicaba as to all matters therein decided and as to dll other questions which could have been raised by the motion for new trial in said case. Pomeroy v. Benton, 77 Mo. 79; Chouteau v. Gibson, 76 Mo. 38. Thq grounds set forth in the motion for a new trial in that case are also alleged in the petition in this case. It is true, however, that in the petition in this case it is averred that the original answer of Laffoon, as garnishee, was .prepared for him by one of Fretwell’s attorneys, whereas, in the motion for a new trial in that case there was no such averment. But such fact could have been alleged in said motion as a reason in support thereof, and every fact set out in the petition in this case as a ground of relief, that was not averred in the motion for a new trial in that case, could have been so averred. We must, therefore, hold that the judgment of the Supreme Court is res adjudieata as to all the questions in this case. The judgment, the collection of which is sought to be enjoined, was rendered in compliance with a mandate of the Supreme Court, and its collection cannot be enjoined on any ground or for any reason that was or could have been presented to the court in the proceeding in which the mandate was issued.

Judgment is affirmed.

Ellison, J., concurs; Philips} P. J., dissents.  