Stowell v. Eldred , 26 Wis. 504 ( 1870 )

Cole, J.

This is an appeal from an order sustaining a demurrer to the amended answer of the defendant Anson Eldred. The action is upon a judgment rendered in April, 1866, by the circuit court of Cook county, Illinois, for the sum of $11;680.14, in favor of the plaintiffs and against the defendants. The answer demurred to, alleges that said judgment was fraudulently obtained as to $6,503.84, and demands that for this amount the judgment should be enjoined. It is not denied but the answer must have the same effect given to it as a bill. in equity under the old practice to relieve against a judgment at law. If, therefore, the matters stated in the answer would constitute good grounds for an injunction in a bill of equity, they must be sustained as a defense here.

It is claimed by the defendant that the matters stated in the answer show that the judgment is unjust; that it was procured by perjured testimony given by one of the plaintiffs; and that it would be unconscionable to allow it to be enforced for the full amount. The rule seems to be quite well settled, that chancery will relieve against a judgment at law on the ground of its being contrary to equity, when the defendant in the judgment was ignorant of the fact in question pending the suit, or it could not have been received as a defense, or when he was prevented from availing himself of the defense by fraud or accident, or the acts of the opposite party unmixed with negligence or fault on his part. Foster v. Wood, 6 Johns. Ch. 86; Merritt v. Baldwin, 6 Wis. 439; Huebschman v. Baker, 7 id. 542; Ableman v. Roth, 12 id. 81.

This doctrine is not seriously contested by the plaintiff ; but it is insisted that there are no facts alleged in the answer showing that any fraud was practiced by the plaintiffs upon the defendant, or that he was diligent in trying to find the witnesses to sustain his defense. But we think otherwise. To our minds the answer not only shows, with sufficient particularity, that a high crime was committed on the trial by one of the plaintiffs swearing falsely upon a most material fact in the original suit, but it also shows that the ddefenant has not, by his laches, forfeited his right to claim the interposition of a court of equity to enjoin the judgment. Of course, the allegations of the answer must be assumed to be true on the demurrer. And this being so, we are certainly warranted in saying that the plaintiff Samuel R. Haven, who was the only one of the plaintiffs present at the trial, and who was called as a witness by the defendant to prove the agency of Scofield in accepting the surrender of the demised premises, was guilty of perjury. The principal ground of defense in the original suit was, that the defendants in that suit were not liable for rent after the first of April, 1862, because Scofield, the duly authorized agent of the plaintiffs, then accepted a surrender of the lease and premises, immediately entering into the possession of them in the name of the plaintiffs, and leased them to other parties. These facts the defendant endeavored to prove on the trial by the plaintiff Haven, who testified that Scofield never had any authority to accept the surrender of the premises and take possession of them on behalf of the plaintiffs. The answer shows that this testimony was false. The answer further shows that the agent Scofield had removed from and left the city of Chicago, and, that his place of residence was unknown to the defendant, who, upon diligent inquiry, was unable to find or procure such agent as a witness on the trial. And the question now is : Was the defendant guilty of laches in going to trial under the circumstances, without asking for a continuance of the cause to enable him to procure the attendance of Scofield, and relying upon the plaintiff Haven telling the truth under oath ? It seems to us not. If a party goes to trial relying upon the opposite party to prove his case when called as his witness, he may have no equitable ground for relief upon failing to prove what he expected to, so long as such opposite party testifies truly to matters within his knowledge. But he has a right to act upon the presumption that the opposite party, when sworn, will not commit perjury. We, therefore, do not think that it was negligence for the defendant to go to trial relying upon the plaintiff Haven testifying truly in regard to the agency of Scofield.

It appears from the answer that some time in the month of January, 1870, the defendant learned, for the first time, that Scofield was in Chicago, which was the first knowledge and information the defendant had been able to get concerning Scofield since the commencement of the suit in which the judgment was obtained. In March following, he called upon Scofield, and learned that he was the duly authorized agent of the plaintiffs to look after the leased premises, and that he was expressly authorized by them to take possession on the surrender of the lease by the defendants in the judgment named. At this, interview Sco-field exhibited to the defendant a written power of attorney to him from the plaintiffs, authorizing him to make and execute the subsequent lease to Pearsons & Avery, and also letters written by Samuel R. Haven and by George W. Johnson, two of the plaintiffs, authorizing him to take possession of the premises and rent them, and also acknowledging the receipt of rent paid by Pearsons & Avery ^*

Now, as we have already remarked, according to these statements in the answer, the plaintiff Haven was guilty of perjury in testifying upon the trial that Scofield was not the plaintiffs’ agent duly authorized to accept for them a surrender of the demised premises. Upon that point no proof was offered, nor could any be obtained except his testimony. If he had testified truly, a perfect and valid defense would have been established in that action to so much of the judgment as is now sought to be enjoined. There can be no possible doubt that if the defendant had known the real facts, and had sufficient proofs thereof, he might have set up the surrender of the premises as a bar to the plaintiffs’ recovery of the subsequent rent. But this he did not know, and upon calling as his witness one of the plaintiffs, the only person present at the trial cognizant of the facts, he was defeated through the turpitude and perjury of that witness. It seems to us that if these allegations of fraudulent concealment and false swearing are sustained, they constitute a sufficient ground for equitable relief against the judgment to the extent sought to be enjoined.

By the Court. — The order sustaining the demurrer to the answer is reversed, and the cause remanded for further proceedings.