
    Cromwell Laithe v. A. McDonald.
    July Term, 1873.
    1. Hew Trial: Fraud of Successful Party: Diligence. Where direct issues of fact are joined upon proper pleadings, and the defendant uses-reasonable diligence to be ready to defend the action, but is absent from the trial, and the plaintiff, who is the only witness who testifies at the-trial, obtains a judgment by means of his own willful and corrupt perjury,, the defendant may have the judgment vacated and a new trial granted under the fourth subdivision of section 568 of the Code, “for fraud practiced by the successful party in obtaining the judgment,” although lie-may not be able to show that he also has a right, under the seventh subdivision of said section, to have said judgment vacated “for unavoidable casualty or misfortune preventing him from defending the action.”
    [2. Equity. It is a general rule of equity, with some exceptions, however,, that courts of equity will not grant relief where the party has a plain and, adequate remedy at law.]
    *Error from Johnson district court.
    This case was here twice before: first at the January term,. 1871, and then at the July term, 1871. Laithe v. McDonald, 7 Kan.. *254, *266. On being remanded the second time, the action came on for trial, and was tried at an adjourned term of the district court-held in February, 1872. The court found in favor of McDonald & Bro. that the judgment recovered by Laithe, at the October term, 1868, of said court, (in Laithe v. A. McDonald & Bro., for $5,686,) “was obtained by fraud practiced by said Laithe on the trial of said cause, and in obtaining said judgment,” and thereupon set aside-, said judgment, and granted a new trial of said action.
    
      Cobb do Cook, for plaintiff in error.
    The fourth subdivision of section 568 of the Code (under which this action is brought) was intended to vest the same jurisdiction over judgments rendered in the same court that was formerly exercised by courts of equity over judgments of courts of law. The. statute does not purport to lay down the principles upon which such. jurisdiction shall be exercised, but merely to vest the jurisdiction, leaving the -principles upon which it shall be exercised to be ascertained by the established doctrines of courts of equity. The jurisdiction of courts of equity to grant new trials in actions at law, “for fraud practiced by the successful party,” was fully established and regulated by numerous chancery decisions before the Code. 2 Story, Bq. Tur. § 887. And when by the Code the legislature in terms grant to district courts the power to vacate judgments and grant new trials in their own courts, without directing under what circumstances, or upon what principles, the authority shall be exercised, or intimating an intention to change the settled doctrines on that subject, it is too clear to require authority, or admit of argument, that the established principles of jurisprudence applicable to the subject, which were a part of the law of the land in force when the Code was enacted, *remained and still remain in force, controlling the exercise of that jurisdiction.
    This case comes fully within the principles heretofore established in chancery cases to vacate judgments and grant new trials in actions at law. The authorities conclusively show that such suits could only be maintained when the defeated party showed that he had merits in the original action, and was defeated by fraud of the prevailing party, unmixed with negligence on his part. 2 Story, Eq. §§ 887, 888, 894, 895, 895a, 896; Marine Ins. Co. v. Hodgson, 7 Cranch, 332; Kerr, Inj. c. 3, § 15.
    Were the defendants, in the action of Laithe v. McDonald, guilty of negligence in failing to defend the action? If this question be answered in the affirmative, there is no occasion to inquire into the merits of said action, or discuss the merits of Laithe’s testimony. We call the attention of the court to the following authorities, showing the degree of diligence which is required to enable the defeated party to maintain a suit for a new trial. Smith v. Lowry, 1 Johns. Ch. 320; Le G-uen v. Gouverneur, 1 Johns. Cas. 437; Bradish v. Gjbbs, 3 Johns. Ch. 551; Foster v. Wood, 6 Johns. Ch. 87; Floyd v. .Jayne, Id. 479; McVickar v. Wolcott, 4 Johns. 510, 533. In Bichards v. Symes, 2 Atk. 319, an application was made for a new trial because defendant at the former trial had proved that Bere, a material witness for plaintiff, was not in England at the time when the events to which he had testified were said to have occurred. In support of the application were several affidavits to prove that the witness was in England at the time specified. Lord Hardwick said: “But in the present case there are no grounds for a new trial. The person who makes the affidavit for defendant swears that he gave Bichards notice a fortnight before the trial that they of the other side would attempt to prove Bere abroad, which, though it was not so particular as to point out the place where they would show him to be, yet was sufficient notice for Bichards to prepare to encounter this evidence.” See, also, Soutbcot v. Watson, 3 Atk. 232, and Protheroe v. Forman, 2 Swanst. 227.
    And that this rule has not been changed by the Code, see Rid-die v. Baker, 13 Cal. 296, decided under the California *Code, in which a rehearing was sought on the ground that the prevailing party procured an excessive judgment by the use of perjured and suborned witnesses, and the court denied the relief, saying that “a party to obtain the aid of chancery must show that he has exhausted all proper diligence to defend at law, or to defend in chancery, if the first suit was in that form. The fraud or practices of the other party are no excuse to him for not attempting to counteract them. He must show that he toas defrauded of his opportunity to defend, and that his defense, which but for the practices of his adversary would have been effectual, was by such practices rendered unavailing.” See, also, Borland v. Thornton, 12 Cal. 440; Houston v. Wolcott, 7 Iowa, 173; Johnson v. Lyon, 14 Iowa, 431; McLain v. Lawson, 25 Iowa, 278.
    In the management of the original cause of Laithe v. McDonald & Bro. the defendants therein were guilty of such gross negligence as to preclude them, from any right to relief for whatever hardship they may claim to have suffered by reason of the judgment therein rendered. The answer of Laithe in this suit (to vacate the judgment) sets up that negligence, and the evidence given by the plaintiff therein proves such negligence conclusively. The diligence of McDonald & Bro. is all summed up in this: that having full notice by the petition of what was to be proved against them by Laithe, and being themselves witnesses to the transaction, and surrounded by other witnesses introduced in this action, all of whom appear by the evidence to have resided in their own neighborhood, and some of whom were in their employ, they neglect to go themselves, or call any witnesses to court; and just before trial, and too late to have it arrive before the day of trial, mail a letter to Burris to get a continuance to obtain the testimony of Chick & Co., who do not appear to be material, and who do appear to be unnecessary, and give Burris no evidence on which to apply for a continuance, and therefore he does not apply; and their attorney Hulett comes to court two days, after judgment is rendered, and neglects to ask for any relief, either of court or counsel, and goes home. It isrespectf ully submitted that this is not *such diligence as commends a party to the favor of a court of equity, in a suit brought to vacate a regular judgment. There is no pretense in this case that the defendants did not have the same defense to the action of Laithe when the trial was had that they now have, nor is there any claim of surprise, or discovery of any new evidence since the trial; and the court will certainly not allow a party to maintain an action to vacate a judgment solely by the use of testimony that he knew the necessity of, and might have used equally as well, on the first trial. It is believed that there is no instance on record where relief was granted against a judgment when (as in this ease) the issue showed what evidence was necessary, and no new fact had occurred, or new evidence been discovered, since the trial.
    
      Wilson Shannon, for defendants in error.
    The district court found that “said judgment was obtained by said Laithe against McDonald & Bro. by fraud practiced by the said Laithe in the trial of said cause, and that McD. & Bro. have a good defense to the action brought by said Laithe against them.” Now, these positive and direct findings by the court bring the case within, not only the spirit, but the very letter, of the fourth clause of section 546 of Code of 1862, which was in force when said judgment was recovered in October, 1868. See, also, section 568, Code 1868. There is- no-pretense that this finding is not justified by the evidence found in the records. It is not only justified, but it is demonstrated to be correct by the evidence in the record. The evidence shows that Laithe has-no shadow of claim against McDonald & Bro. of any kind, and never-had, and that when he testified in the original suit to the whole amount of his goods, and their-value, he knew he had no claim against them. He had nine boxes of goods originally consigned to Chick & Co., of Kansas City, and in their warehouse. .The evidence shows-that he had received six of these boxes long before he brought suit in Johnson county, and that only three boxes remained behind, which he supposed had been burned *up in the house of Scott, Cutler & Co., (in November, 1866,) in Kansas City, but which in fact had never been removed from the house of Chick & Co. The evidence proves, beyond all doubt, that Laithe obtained his judgment by fraud, not merely constructive, but actual fraud, and the court below has so found. There is nothing in the record that-will justify, or furnish even an apology for, disturbing this finding. This ease, then, must be determined as though the fact was conceded that Laithe, the successful party, obtained the judgment complained of by fraud practiced by him in obtaining the same. With this as a. fixed fact in the case, what ground is there in this case to reverse the-judgment of the court below setting that fraudulent judgment aside- and granting a new trial? Plaintiff in error claims that McDonald & Bro. were guilty of negligence, and they cite numerous cases to-prove that where a defendant has been negligent a judgment against him will not be set aside. The cases of Foster v. Wood and Floyd v. Jayne have no analogy to the ease before the court. In those-cases the defendant had failed to plead his defense, and consequently could not prove them on the trial. But that is not this case. Here-the proper plea on defense is put in, and within the rule-day. McDonald & Bro. put in all the defense they could put in; that is, a. general denial. The wrong we complain of took place on the trial of the case, — -the false and fraudulent testimony of Laithe, the only witu.'-is '-xamiued. This fraud practiced by Laithe in the hearing of the i-, ■ re could not plead or set up as a defense to his alleged cause-of ac; i n
    
      The counsel for Laithe seems to think that Mel). & Bro. were negligent because they did not move the court below for a new trial in the original suit. This is not sustained by the evidence. But under our Code a party is at liberty to resort to any of the remedies provided for getting a new trial, and omitting to resort to one does not prejudice his right to resort to any of the others. McDonald & Bro. ' might have moved for a new trial; but failing to do so, are they precluded from filing their petition to have the judgment set aside on the *ground of fraud practiced by the successful party in obtaining the same ? Certainly not. There was no negligence in preparing for the trial of the original case, and none in not moving for a new trial. The fraud and perjury of Laithe could not be guarded against; but being now fully shown, his judgment procured by means thereof was rightly set aside.
   Valentine, J.

This was a proceeding in the district court of Johnson county, by the defendants in error, A. McDonald & Bro., under section 568 of the Civil Code, to vacate a certain judgment previously rendered in said court in favor of Laithe, plaintiff in error, and against said McDonald & Bro. for the sum of $5,686, and costs, and for a new trial. The petition for the vacating of said judgment, and for the new trial, is founded principally, if not entirely, upon the fourth subdivision of said section, to-wit, “for fraud practiced by the successful party in obtaining the judgment;” although there are some allegations in said petition which would tend also to bring the proceeding under the seventh subdivision of said section, to-wit, “for unavoidable casualty or misfortune preventing the party from prosecuting or defending.” The fraud alleged to have been “practiced by the successful party in. obtaining the judgment” was the willful and corrupt perjury of the plaintiff in error himself on the trial, as the sole witness:, in the case, and in the absence of the other parties and their counsel...

The petition in this proceeding alleges, among other things, substantially as follows: In 186S said Laithe brought an action against, McDonald & Bro. in the district court of Johnson county for a failure.by them to deliver goods which, as he charged, were received by them as common carriers, and lost by their negligence. McDonald & Bro. answered by a general denial of the facts stated in the petition. The cause was tried at the October term, 1868, of the district court, on said petition and answer. ■ The defendants were not present at the' trial. The plaintiff, Laithe, was*the only witness on the trial. He tesified willfully, corruptly, and falsely that the defendants were common carriers; that they received said goods in that capacity to carry from Kansas City, Missouri, to Fort Scott, Kansas; that they failed to deliver them; and that the goods were worth $5,686 : while in truth and in fact the defendants were not common carriers; they never received said goods, nor any part of them, as common carriers, nor in any other capacity; and all the goods that the plaintiff had at Kansas City were not worth more than $1,800. The fraud of the plaintiff in obtaining said judgment was amply proved on the trial of this proceeding, and the fact was so found by the court. Hence no question is now raised upon that point. But it is claimed by the plaintiff in error that thedefendants in error did not show “unavoidable casualty or misfortune,” preventing them from defending the original action. This, we think, is true; but it is not necessary that any such thing should have been shown. A party is never required to exercise more than reasonable and ordinary diligence in preventing a fraud from being perpetrated upon him, and fraud vitiates everything it touches. Of course, a defendant failing to defend cannot have the judgment vacated on account of any innocent mistake, or want of recollection on the part of the plaintiff, or other witness, nor ■even on account of theperjuryof the other witnesses, provided the plaintiff himself is wholly guiltless. Nor can he have the judgment vacated on account of any mistake or error on the part of the court or jury, unless the record affirmatively shows such mistake or error. All such mistakes and errors each party is bound to anticipate, and to prepare for by extraordinary diligence. But no party is bound to anticipate or to suppose that the other party will commit willful and corrupt perjury, and no party is bound to exercise extraordinary diligence in preparing to meet such perjury.

In this case we think the defendants exercised reasonable diligence. They employed counsel, who filed an answer for the defendants within the time prescribed by law. They placed the case in' such a con*dit,ion that no judgment could have been taken against them except through some mistake, or through fraud. They commenced immediately after being summoned to hunt for their witnesses. They found that the testimony of one of their witnesses could not be obtained in time for the October term of the district court, 1868. The action was commenced September 7, 1868. The answer was filed October 6, the judgment was rendered October 24, and the court adjourned October 27, 1868. The defendants resided at Fort Scott, in Bourbon county. The action was pending in ■Johnson county. As soon as the defendants ascertained that they ■could not get the testimony of said witness, they wrote a letter to an • attorney at law of Johnson county, desiring him to obtain a continu- • anee of the case for them. The letter was written in ample time, -but the attorney did not receive it, on account of delay in the United hBtates mails until it was too late for him to do anything. This we ■•■think was sufficient diligence for a case of this kind. Neither was vthe fact that the defendants’ counsel arrived at the place where the '•court was held two days after the judgment was rendered, and one Jay before the court adjourned, and did not make a motion for a new trial, such negligence as will prevent the defendants from obtaining relief in this proceeding. Said counsel had no evidence present to prove the fraud in obtaining the judgment. Courts of equity have always had the power to grant relief where a judgment was obtained through fraud; and, originally, courts of equity exercised this power with great liberality. This was when courts of law seldom granted new trials. But when courts of law extended their jurisdiction, and granted new trials with greater liberality, the courts of equity to some extent withdrew their jurisdiction, and granted relief in fewer cases. It is a general rule of equity, with some exceptions, however, that courts of equity will not grant relief where the party has a plain and adequate remedy at law. Upon the foregoing propositions, see Powers’ Ex’rs v. Butler’s Adm’r, 4 N. J. Eq. 465; Nelson v. Bock-well, 14 Ill. 375. Hence if a decision in equity should be found in any state *against granting relief in such cases, it would not be a decision that the party has no remedy, nor that he has not the remedy that McDonald & Bro. now seek in this case. The relief in equity was different from the relief now granted by our statutes. Equity did not grant a retrial in the court of law as our statute does, (2 Story, Eq. Jur. §§ 1574, 1582;) and hence courts of equity should have been more cautious in granting relief in such eases than the courts of this state should under our statutes. Under the statutes a new trial is granted in an action at law in the same court, and an opportunity is afforded of having a full and fair trial before a jury.

We have examined all the American authorities referred to by counsel for plaintiff in error, and we do not think that any one of them militates against the views we have expressed in this opinion. The leading case referred to by counsel for plaintiff is Smith v. Lowry, 1 Johns. Ch. 320. That was an action to vacate a judgment, not because the judgment had been obtained through fraud, but because excessive damages had been obtained through fraud. The chancellor says in his opinion: “The cases of relief in equity against judgments at law, founded in fraud, are, when the fraud goes to the whole judgment, and not to the mere excess of damages in a case properly sounding in damages.” The next strong case of the plaintiff is Foster v. Wood, 6 Johns. Ch. 87. In this case the plaintiff took judgment for $317.44, which was $76 too much; but it is not alleged that there was any fraud or perjury in taking such judgment. The next case upon which the plaintiff seems to rely is Floyd v. Jayne, 6 Johns. Ch. 479. There was no perjury in this case. The defendant claimed that he had paid the demand upon which this judgment was rendered before the suit was brought, but with gross negligence he went to trial without even pleading payment. He, of course, knew beforehand that the judgment must go against him unless he were to plead and prove the payment, for the action was on an ordinary promissory note. The case of Riddle v. Baker, 13 Cal. 296, was a bill in equity to restrain *the collection of a judgment. Much was alleged, but nothing proved. No fraud or perjury was shown. It was in fact merely a question of ex-cessivé damages without fraud. The case of Essex v. Berry, 2 Vt. 161, was a bill in equity to perpetually enjoin a judgment rendered on a default without perjury, where a portion of the judgment was just, which the plaintiff offered to pay. The case of Borland v. Thornton, 12 Cal. 440, was an action to set aside a judgment, and allow the defendant in the original action to interpose a defense which he had negligently failed to do before judgment; but there is no pretense that there was any fraud or perjury in obtaining the judgment. In the case of .Johnson v. Lyon, 14 Iowa, 431, the defendant asks to have the judgment set aside in order that he may set up the defense of usury, and defeat the plaintiff’s claim to the extent of the usurious interest. It was conceded that the balance of the judgment was correct. Fraud was alleged, but no fraud was shown by the evidence, and no perjury was either alleged or proved. In the case of LeGuen v. Gouverneur, 1 Johns. Cas. 436, it is decided that “where a party to a suit at law has knowledge of a fraud or other matter of defense in time to avail himself of it at the trial at law, and he neglects to do soj he cannot afterwards obtain relief in a court of equity against the judgment at law on the ground of such fraud, or matter of defense, that he might have set up at the trial, but is forever concluded by the judgment.” These are the strongest American cases cited by and for the plaintiff in error. We have not examined the English cases cited by him.

We think that McDonald & Bro. have clearly shown a right to the relief they ask under the statute, and therefore the judgment of the court below must be affirmed.

(All the justices concurring.)  