Laithe v. McDonald , 7 Kan. 254 ( 1871 )

The opinion of the court was delivered by

Brewer, J.:

1. Practice: obtifio” wii°e£e' waived!7 Cromwell Laithe, the plaintiff in error, brought suit in the district court of Johnson county, against the defendants in error, to recover $5,686 for goods delivered to them as common carriers, to. be transported from Kansas City to Fort Scott, and through negligence lost and destroyed. A general denial was filed. On the 24th of October, 1868, the case was called for trial, and the defendants not appearing, Laithe testified to the facts set out in the petition and obtained a judgment for the amount claimed. On the 7th of November, 1868, defendants in error filed their petition, under section 568, of the civil code, to have that judgment vacated and set aside. The grounds alleged were, first, “ fraud practiced by Laithe in obtaining the judgment,” and second, unavoidable misfortune, preventing McDonald, et al., from defending. The district court, on the objection of Laithe, held the petition insufficient in respect to the second ground of relief. This ruling left for investigation simply the question of fraud practiced in obtaining the judgment. Upon trial the court found in favor of the defendants in error, vacated the judgment recovered by Laithe in the case of Laithe v. McDonald, et al., and reinstated said case on the docket for trial. A motion was made to exclude all testimony for the reason that the petition for vacating said judgment did not state facts sufficient to constitute a cause of action, which motion was overruled, and the petition held sufficient so far as the first ground of relief, that is, “fraud in procuring, the judgment,” was concerned. "Was this error ? It was alleged “ that said judgment was procured by fraud on the part of said Cromwell Laithe, plaintiff therein, by said Laithe falsely and fraudulently swearing and testifying,” etc., setting forth the testimony ; and that the defendants were absent at the time of the trial, giving the reason therefor. This objection to the petition was made too late. After answer filed, an objection to a petition that it does not state facts sufficient to constitute a cause of action is good only when there is a total failure to- allege some matter which is essential to the relief sought, and is not good when the allegations are simply incomplete, indefinite, or statements of conclusions of law. That the testimony was fraudulently given, may be a conclusion of law from many facts, and if the defendant desired that these facts should be presented, he should, before answer, have filed his motion to make the petition more definite and certain. Failing to do this, and by filing his answer accepting the issue tendered, he should not on the eve of trial be permitted to question the fullness and certainty of the allegations of the petition. The West. Mass. Ins. Co. v. Duffy, 2 Kas., 347; Meagher v. Morgan, 3 Kas., 372.

2. Depositions; efficto?.1’ II. A deposition was taken upon a notice entitled in two cases as follows: “A. McDonald & Co., plffs., v. Cromwell Laithe, deft,” and “ Cromwell Laithe' plff., v. A. McDonald & Co., defts.” The parties were the same, but their positions as plaintiff and defendant were reversed. The idea of the party taking this deposition seems to have been to obtain testimony for use in the proceeding to vacate the judgment, and, that being successful, to have the same testimony ready for the trial of the original case. Exceptions were taken by Laithe to this deposition on this ground, and overruled. As a general rule we think it error to permit the taking of a deposition under a notice specifying and for use in two cases. A party to a suit has the right generally to have all the proceedings in that suit kept free from and unembarrassed by the proceedings in any other suit. Still, as the two suits appear to have been between the same parties, and inasmuch as the statute provides that a deposition once taken may be read “ in any other action or proceeding upon the same matter, between the same parties,” we do not think the refusal to suppress the deposition such an error, affecting the substantial rights of the party, as would justify this court in reversing the judgment therefor, unless it appeared that the other proceeding entitled in the notice was upon a different matter. We must presume in favor of the ruling of the court below, and, in the absence of proof to the contrary, that it was made to app.ear to him that both actions entitled in the notice were upon the same matter. 2 Nevada, 81.

III. But the most important question in the case remains to be considered. The court below found the following facts:

“ 1st. That at the October Term, 1868, of this court, there was a judgment rendered in favor of Cromwell Laithe, plaintiff, and against A. McDonald & Co., defendants, for $5,686, and costs.

“ 2d. That said judgment was procured by means of the testimony of said Laithe, and no other, and in substance that the defendants therein made and entered into an agreement and contract with him on or about the 19th day of November, 1866, whereby said defendants, (the plaintiffs herein,) agreed for hire to receive and transport from Kansas City, Mo., to Fort Scott, Kansas, within a reasonable time, certain goods and chattels belonging to and owned by said Laithe.

“3d. That the contract testified to by Laithe was in fact not made, but the plaintiffs herein agreed to transport said goods for said Laithe if it should be convenient for them to carry the same with their own goods, and said Laithe either misunderstood or misrecollected said contract, or willfully and corruptly testified falsely concerning the same upon the trial of the said cause, and thereby recovered a judgment against the plaintiffs herein, when in fact, and in law, he would not have been entitled to the same.”

3. Judgment "will fi™doarpi*1' JUiy' i. Findings of Sain.ustlM And from these facts the court found, as matter of law, that the “plaintiffs were entitled to a judgment vacating the judgment so rendered as aforesaid in said cause.” Do the facts found warrant the conclusion of law ? It must be remembered that the only ground of relief in the case as tried is, in the language of the statute, “ fraud practiced by the successful party in obtaining the judgment.” The word fraud in this statute is used in its common, direct sense. It means “fraud in fact,” not “ fraud in law.” It embraces only intentional wrong — those acts done by ::>e successful party, with a knowledge of their criminality, and with the purpose of thereby depriving his adversary of some right. The giving or use of false testimony, though it may operate to the injury of the unsuccessful party, is not necessarily fraud practiced by the successful party. The rule is, that when the party being himself a witness, commits willful perjury, or makes use of false testimony which he knows to be false, and thereby obtains a judgment, he practices a fraud, within the meaning of the statute quoted, for which the judgment may be vacated. In Burgess v. Lovengood, 2 Jones’ Eq., 457, Pearson, J., says : “ So it is agreed that to set aside thé verdict on the ground of its being obtained by perjury there must be an allegation that the party who used the testimony knew it to be false.” The finding of the court is that Laithe “ either misunderstood or misrecollected said contract, or willfully and corruptly testified falsely concerning the same.” Now, if Laithe simply misunderstood or misrecolleeted the contract, and in good faith honestly gave in his testimony concerning it, he practiced no fraud in obtaining his judgment. If misrecolleetion or mistake on the part of a witness were ground for vacating judgments, they would have much less stability than we have generally conceded to them. Counsel for defendants in error appreciating the difficulties of this finding says in reference to it: “ From the finding of the court below, this court cannot assume that he did the one or the other; consequently this court will have to look into the record, and determine from the evidence for itself how the fact is, unless indeed the court take the findings of the court below, that are found in the final decree above referred to, as conclusive in the case on the question of fraud.” Findings of fact should be direct, positive, and unambignous. "Where' the finding is, as in this case, that either this or that is the fact, if each of them supports the conclusion of law, the error is immaterial ; but if one does and the other does not, then ordinarily the case should be remanded. Especially should this course be adopted when, as here, the finding involves a question of perjury; for not always from the number of opposing witnesses is the perjury of one established. The conduct of a witness, his manner of testifying, and his appearance on the stand, are important in determining his truthfulness; and these are 'matters which cannot be preserved in a record.

5. paiiy must not íaeeies!ty0f Again, the testimony discloses that the defendants in error were not present at the trial, but fails to show why they did not appear. It appears also that Laithe’s testimony simply corresponded to the allegations in the petition. Under these circumstances it seems to us it should be shown that they were guilty of no laches in failing to appear. We do not mean to be understood as saying that a party must make out a case under clause seventh of the section heretofore referred to, (civil code, § 568,) before he can avail himself of the provisions of clause fourth; but simply, that he should show that his absence was not intentional, nor the result of his own negligence. The judgment of the court below must be reversed, and the case remanded for further' proceedings.

Nelson Cobb, for plaintiff in error. Wilson Shannon, for defendants in error. All the Justices concurring.

This case came here again at the July Term, 1871, upon an alleged error committed by the district court in its action on receipt of the mandate sent down pursuant to the foregoing decision “reversing” the judgment of that court. As the alleged error is based upon the use and meaning of the word “ reversed,” as used in the foregoing opinion, it is deemed best to give the decision of this court thereon in connection with the principal case.

July Term, 1871. '

By the Court,

Brewer, J.:

e. “Reversed;” term.ltl0n This case was before this court last winter on a petition in error to reverse the judgment of the district court of Johnson county. The judgment of that court was in favor of McDonald, et at., and against Laithe. On an examination of the record this court found error in the proceedings of the district court and rendered its judgment accordingly. The closing sentence of the opinion which was filed in that case reads as follows : “ The judgment of “ the court below must be reversed, and the case remanded “for further proceedings.” This direction was incorporated into the judgment entered here, and the mandate sent to the court below. Upon the strength of that mandate and opinion counsel for Laithe moved the district court to set aside the judgment theretofore rendered against Laithe, and to enter one in his favor. This motion the court overruled, and setting aside the judgment against Lai the placed the case upon the docket for a new trial. This action is now alleged for error. It is claimed that the word “ reverse,” in the opinion, the judgment, and the mandate, requires not merely the setting aside of the one judgment, but the granting of another; that, if merely the setting aside of the existing judgment was intended, the word “ vacate ” would have been the proper term. In other words, a judgment in favor of McDonald & Co. is not “ reversed ” unless a new judgment is rendered in favor of Laithe. We shall not stop for any critical examination of the definition of the term “ reverse,” though we may remark in passing that Webster’s definitions show that its meaning is that of setting aside, or annuling. But be that as it might be, the term has received by long usage in this court a settled meaning. In 1868 the counsel for Laithe, at that time the Chief Justice of this Court, writing the opinion in the case of Smith v. The State, 1 Kas., 393, closed that opinion by saying — “ For the errors of the court in denying a change “ of venue, the judgment must be reversed, and the case “ remanded.” No one supposed that this direction required both the setting aside of the judgment against Smith and the entry of a judgment in his favor upon the indictment filed against him. In the first volume of Kansas Reports, out of fifteen cases in which judgments were set aside and new trials awarded, in fourteen the term “ reverse ” is used in the direction-clause of the opinion in the sense simply of setting aside. In some of these the direction is to reverse the judgment and grant a new trial, in others simply to reverse the judgment and remand the case. All the members of the court agree in that use of the word. An examination of the remaining-four volumes of our reports is attended with like results. From the organization of the court down to the present time, .every judge has constantly in his opinions used the word in that sense.' A construction, which has the sanction of such eminent authority, and the usage of so many years, seems to us useless to disturb. We see no reason to doubt that the term as used in opinions, judgments and mandates, means what we have always understood it to mean, setting aside, annuling,/ vacating — at least, such is the sense in which it was used in this case. It follows therefore that the order of tí : i^o<xict court must be affirmed.

All the Justices concurring.