
    Hughes, Appellant, v. Clark.
    
      Equity — Fraud—Restraining collection of jvdgjnent — Evidence.
    In a proper case a court of equity will restrain the plaintiff from the collection of a judgment at law, procured by fraud, where it is "clear that the defendant has used due diligence and exhausted every legal means of defense or redress, or has been prevented, without fault of his own, from doing so. The defendant, however, must make out a clear case, and if he fails to do so, or if he knew of the judgment, or was guilty of gross negligence in not ascertaining that it existed, and appealing or suing out a certiorari, equity will not relieve him.
    Argued Dec; 4, 1907.
    Appeal, No. 133, Oct. T., 1907, by plaintiff, from decree of C. P. Northampton Co., Nov. T., 1906, No. 2, dismissing bill in equity in case of Milton A. Hughes v. W. B. Clark.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Scott, P. J., filed the following opinion:
    The material facts I have specifically found in answer to requests, but some brief statement in narrative form will be advisable here. The defendant, above named, sued the plaintiff by the issue of two separate writs of summons on June 1, 1905, before Henry Krauskopf, a’justice of the peace, who died before this bill was filed. One action was in debt; the other was trover and conversion and conversion for detention of a horse. At the return day both parties met before the justice, and his docket, produced in court, shows that judgment was publicly entered against the defendant there in the two cases. No appeal was taken. The transcript of the judgment in debt was subsequently filed in the prothonotary’s office, and a writ of fi. fa. issued from the common pleas, No. 11; November Term, 1906, under which levy was made upon the property of that defendant. The' present complaint, upon which a preliminary injunction was awarded, and then continued until final hearing, is intended to restrain the collection of it indefinitely. The case in trover and conversion was settled before the parties departed from the office of the justice — by the defendant there undertaking to return that day the horse to the plaintiff, which he did. The latter (this defendant) paid the costs of that suit.
    It is the main contention of the plaintiff to this bill, that both suits were then settlecl; that judgment was entered subsequently, by the procurement of the present defendant, of which action he was then, and for a long time afterwards, ignorant, and so deprived of his right to appeal. I cannot find that this is sustained by the proof. There is testimony from two witnesses which, upon first consideration of it, apparently supports the plaintiff, but upon closer examination is not inconsistent with that of defendant here. One of them did not remain all the time, neither did the constable; the other did not hear all the- conversation. It is certain there were negotiations for some kind of settlement, but this is admitted; it is asserted by the defendant that these related altogether to the case of trover and conversion. The horse which was the subject of that suit was returned the same afternoon, and the costs paid as stipulated. Now it is plain from a few observations, that this complainant is mistaken. He says there was but one summons, and one suit (Transcript, pp. 2, 9, 12), but the constable who served the writs, and the record itself contradict this allegation. The defendant then had a counterclaim of set-off against the demand in debt, for payment of most of which the plaintiff produced receipts. It is, however, asserted by him that for the return of the horse, in settlement of the entire dispute, he was to have immediate payment of $165 from the plaintiff; he did not receive it then, and never afterwards to the time of filing his bill in October, 1906, made any request for this money. This is so improbable that it cannot be accepted as consistent with these alleged terms of settlement. To which must be added the fact that he was notified in January following, he must pay this judgment and that written demand was also sent by defendant’s counsel, April 10, 1906 (Ex. No. 3). He took no steps to dispute it, until after execution was issued in October. The plaintiff avers it was not then entered while the parties were present; the defendant says it, was, in which he is supported by the presumption that the justice’s docket speaks correctly; and there is no other direct evidence. The right to enjoin in equity the enforcement of unjust judgments, when the proven facts justify it, is clear enough. But no such case is presented here. Assuming the circumstances attending the entry of it existed, as the plaintiff now maintains, his right of appeal was not lost, if application were promptly made after knowledge was acquired: Mcllhaney et al. v. Holland, 111 Pa. 634. Neither was the remedy by certiorari gone: Laeock v. White, 19 Pa. 495. When the merits of the original cause of action may yet be the subject of review, or the right has been lost by laches, a court of equity will not entertain jurisdiction to enjoin execution on the judgment.
    Now, May 13, 1907, this cause came on to be heard, and was argued by counsel; after consideration thereof, it is adjudged and decreed that plaintiff’s bill be dismissed with costs.
    
      Error assigned was the decree of the court.
    
      Herbert F. Lavh, with him J. Willard Paff, for appellant.
    
      Edward J. Fox, with him Alex. N. Ulrich, for appellee.
    
      February 28, 1908:
   Opinion by

Morrison, J.,

The appellant filed his bill in October, 1906, to restrain the appellee from the collection of a judgment entered against appellant by a justice of the peace, in June, 1905. A transcript of the justice’s judgment had been entered in the common pleas and a fi. fa issued for its collection.

The record discloses nine requests for findings of fact, five for conclusions of law, fifteen exceptions and fourteen assignments of error, on the part of the appellant.

On full hearing the learned court below dismissed the bill, filing with the decree an opinion fully vindicating the decision.

We have carefully read and considered all of the evidence and it falls far short of presenting a case warranting a court of equity in restraining the collection of a judgment at law. We consider the evidence convincing that the appellant was sued before the justice in two suits, returnable on the same day; one suit in trover and conversion, and the other one in debt or assumpsit. That the trover suit was settled and a judgment of $177 was, on the return day, entered against the appellant in the other suit; that he was present in obedience to a summons in that case duly served, and he never took an appeal or certiorari. His evidence, in the equity suit, that there was any trick, fraud or deception practiced in procuring said judgment is too loose and unsatisfactory to warrant a chancellor in restraining its collection. On the other hand, the regularity of the judgment is sustained by the record of the justice; the testimony of the constable who served the summons and was present at the trial, and by the clear and positive testimony of the appellee in the equity suit, plaintiff in the suit at law.

There is no dispute about the law in the present case. Counsel for appellee concedes that in a proper case a court of equity will restrain the plaintiff from the collection of a judgment at law, procured by fraud, where it is clear that the defendant has used due diligence and exhausted every legal means of defense or redress, or has been prevented, without fault of his own, from doing so: Althouse v. Hunsberger, 6 Pa. Superior Ct. 160; Given’s Appeal, 121 Pa. 260.

The appellant was summoned and appeared before the justice and he either knew the judgment, was entered against him or else he was guilty of gross negligence in not ascertaining that fact, and appealing or suing out a writ of certiorari, if aggrieved by the judgment.

The disposition of the appellant’s bill depended on the facts, and while he was bound to present a clear case he failed to do so, and the evidence, taken as a whole, is strongly against his contention.

The assignments of error are all dismissed and the decree is affirmed, at the costs of the appellant.  