Godfrey v. Camp

Mount, J. —

This action was brought to set aside a judgment in the matter of the estate of Sarah J. Brown, deceased. The trial court sustained a demurrer to the complaint and dismissed the action. The plaintiffs have appealed from that order.

It appears upon the face of the complaint that these plaintiffs instituted an action to set aside the purported will of Sarah J. Brown, deceased. That action was tried in the superior court on June 19, 1912, and a judgment was entered declaring the will valid. That judgment was after-wards affirmed upon appeal to this court. In re Brown’s Estate, 83 Wash. 528, 145 Pac. 591. After the judgment was affirmed, the plaintiffs petitioned this court for a rehearing. That petition was denied in April, 1915. Thereafter, in June, 1915, these plaintiffs filed a petition in this court asking permission to attack the judgment upon the facts set out in this complaint. The petition was denied. Afterwards a petition for a rehearing thereon was also denied. Thereafter this action was brought in the court below alleging the foregoing facts, and also that the purported will which had, been adjudicated to be valid was invalid because it was a forgery; and that, since the original trial, additional evidence had been discovered which would show the will to be a forgery; that it was afterwards discovered that the witnesses who testified in favor of the will had perjured themselves upon the trial; that these facts were unknown to the plaintiffs at the time of the original trial, and could not have been discovered with reasonable diligence. This, in short, is the substance of the complaint.

Upon the hearing of the demurrer, the trial court was of the opinion that there was no jurisdiction in the superior court to reopen the case and retry it; and also that the complaint did not state facts sufficient to constitute a cause of action. We think the trial court was right upon both grounds.

This court in a number of cases has held that after a judgment has been affirmed upon appeal, the superior court has no jurisdiction of an action to vacate it for fraud, where permission to do so has not been granted by this court. Kath v. Brown, 53 Wash. 480, 102 Pac. 424, 132 Am. St. 1084; Kath v. Brown, 69 Wash. 306, 124 Pac. 900; Cochrane v. Van de Vanter, 13 Wash. 323, 43 Pac. 42; Pacific Drug Co. v. Hamilton, 76 Wash. 524, 136 Pac. 1144; State ex rel. Prentice v. Superior Court, 86 Wash. 90, 149 Pac. 321.

In Kath v. Brown, 53 Wash. 480, supra, we said, in a case very much like this:

“The trial judge had no jurisdiction to entertain the petition now before us. When the judgment of this court affirming the judgment of the judge pro tempore was remitted to the lower court, it became in legal effect conclusive upon all the parties to the action in that court, unless recalled or attacked by permission first obtained upon proper showing here. This was not done.”

In Pacific Drug Co. v. Hamilton, supra, we held that the lower court was without jurisdiction to amend a judgment which had been affirmed by this court.

In State ex rel. Prentice v. Superior Court, supra, after referring to a number of cases from this court, we said:

“An examination of these cases discloses the fact that, in every one of them, there was either an express affirmance of the judgment by this court, or an express entry of judgment on the merits by this court. They sustain the doctrine that, in such cases, no interference with such judgments by any proceeding in the same cause in the lower court will be tolerated, except by direction or leave of this court.”

It is plain, therefore, that the lower court had no jurisdiction to vacate, modify, or set aside the decree ordered entered by this court, except by permission of this court, which was not had.

This is decisive of the case, but in view of the fact that no opinion was written when the application for permission to reopen the case was denied, we deem it proper to consider briefly the sufficiency of the complaint. It appears therefrom that the will of Sarah J. Brown, deceased, was attacked by these plaintiffs upon the ground that the will was forged and supported by perjured testimony. After a trial of that question, the superior court found that the will was valid, and entered a judgment to that effect. The appellants now claim that, since that trial, they have discovered other evidence to the effect that the will was a forgery; that the witnesses who testified in that case testified falsely, and that these facts were discovered with due diligence after the trial.

In the case of Robertson v. Freebury, 87 Wash. 558, 152 Pac. 5, L. R. A. 1916B 883, this court had occasion to consider the questions presented here, and we said:

“Assuming that the court’s judgment was based upon perjured testimony, that fact was unavailing, for the reason that judgments or decrees of a court of justice cannot be set aside on a collateral attack as being fraudulently obtained upon the sole ground that they were obtained on perjured evidence, without some other extrinsic or collateral fact entering into and constituting fraud in the transaction.”

And further on in the same opinion, defining what were “extrinsic or collateral facts,” we quoted from Pico v. Cohn, 91 Cal. 129, 25 Pac. 970, 27 Pac. 537, 25 Am. St. 159, 13 L. R. A. 336, as follows:

“What, then, is an extrinsic or collateral fraud, within the meaning of this rule? Among the instances given in the books are such as these: Keeping the unsuccessful party away from the court by a false promise of a compromise, or purposely keeping him in ignorance of the suit; or where an attorney fraudulently pretends to represent a party, and connives at his defeat or, being regularly employed, corruptly sells out his client’s interest. United States v. Throckmorton, 98 U. S. 65, 66, and authorities cited. In all such instances the unsuccessful party is really prevented, by the fraudulent contrivance of his adversary, from having a trial; but when he has a trial, he must be prepared to meet and expose perjury then and there. He knows that a false claim or defense can be supported in no other way; that the very object of the trial is, if possible, to ascertain the truth from the conflict of the evidence, and that, necessarily, the truth or falsity of the testimony must be determined in deciding the issue. The trial is his opportunity for making the truth appear. If, unfortunately, he fails, being overborne by perjured testimony, and if he likewise fails to show the injustice that has been done him, on motion for a new trial, and the judgment is affirmed on appeal, he is without remedy.”

No such extrinsic or collateral facts were alleged. The foundation for this rule, of course, is that there must be an end of litigation. And when a case is once tried in a court of competent jurisdiction it is finally tried and the findings therein are conclusive, unless reversed on review or upon appeal. That rule is clearly applicable in this case. The case was tried originally upon the question of fraud procured by forgery. If the will was forged, the testimony in support of it must necessarily have been perjured. When these plaintiffs sought to set aside that will, they entered the contest assuming that they were prepared to show those facts. They made that issue in the case, tried it out, and were not successful. If they may now, after the case has been affirmed upon appeal, again raise the same issue and retry it, and again fail, then, upon further discovered testimony, they may have another trial, and so on indefinitely. Our system of jurisprudence does not permit any such procedure. The only tenable theory is that a trial once had is conclusive upon the parties, when no errors are found and when no fraudulent contrivance prevents a fair trial. New trials, of course, may be granted as provided by the code, and not otherwise.

We are therefore satisfied that the trial court properly sustained the demurrer upon both grounds.

The judgment is affirmed.

Main and Mourns, JJ., concur.