Gambar halaman

the conditional agreement to pay any judg- the bond will pay any judgment that may ment that might be rendered against it. be rendered "against it" (the bank); and Crane and Winans were not parties to this the allegation of the petition in this case is bond. On the trial judgment was rendered that the property was attached as the propin favor of the plaintiff and against E. W. erty of Crane and Winans. This allegation Crane and J. W. Winans for $3,634, and is not enough to justify a reformation of the $139.9.5 costs, but against the plaintiff and in bond. The plaintiff has come into a court of favor of tl:e ('uster County State Bank. The equity asking for relief against a mista ke; plaintiff in (ror then commenced the present but, even though a mistake has been made, suit to reform the undertaking given by the before relief will be granted, it must appear ('ustir ('ourty State Bank for the release of that the plaintiff, without such correction, the property, so as to bind the bank and the will suffer injury and be deprived of the suroties to pay any judgment that might be benefits of his attachment. If the property rcdereil in the case, instead of "against it" attached actually belonged to the bank, the (the buk). The petition also alleges that bond was in proper form; for its property exe'ution had been issued against Crane and could not be legally subjected to the payWinans, and returned "No property found." ment of another's debts. If the property atThe plaintiff also prays for judgment against tached was in fact the property of Crane the Custer County State Bank and the sure- and Winans, the plaintiff should have so ties on the bond for the amount of the judg- stated in its petition. That the property was ment and costs against Crane and Winans. attached "as the property of Crane and WinA demurrer was filed to the petition, and ans" would not be sufficient to justify the sustained by the court. The plaintiff elected court to reform the bond. The plaintiff to stand on the petition, and the court enter- should have alleged, not tbat it was attached judgment dismissing the case, and the ed as the property of Crane and Winans, plaintiff has come here on appeal.

but that it was duly attached in the action, We are clearly of the opinion that the pe. and that it was the property of such defendtition fails to state a cause of action. The ants, and not the property of the Custer purpose for executing a bond like the one in County State Bank. Equity delights in dosuit is to secure the return of the property ing full and complete justice, and, if this attached, and there is no allegation in the property which was attached was (as recitpetition to the effect that after the Custer ed in the bond) in fact the property of the County State Bank executed the bond in Custer County State Bank, then the attachquestion the attached property was returned ing of it by the plaintiff as the property of to it. Such an allegation was indispensable, Crane and Winans presents no equitable and the fact that the court, after the bond cause of action. The plaintiff cannot in equiwas approved, ordered the attached property ty complain that he has been prevented from to be released, and the plaintiff attached a subjecting the bank's property to the paycopy of such order to his petition, is not ment of the debts of Crane and Winans. sufficient. The burden is on the pleader to Judgment affirmed. Costs taxed to appelshow that the attached property actually

lant. All of the Justices concurring, except was returned. The bond was executed un- IRWIN, J., who presided at the trial below, der the terms of section 4107 of the Statutes not sitting. of Oklahoma for 1893, and this statute contemplates restitution of the attached prop

(19 Okl. 306) erty. In the case of James McGonigle et al. CITY OF GUTHRIE v. MCKENNON. v. William Gordon et al., 11 Kan. 167, the

(Supreme Court of Oklahoma. Sept. 5, 1907.) Supreme Court of Kansas, in passing upon the

1. JUDGMENT-FRAUD-ACTION TO VACATE. question here presented, said: “In an action

A judgment of a court of record, obtained on an undertaking given by the defendant and procured to be entered by reason of the in an attachment case to secure the release fraud and deceit of the party benefited thereby, of the attached property, it is necessary to

is voidable at the suit of the judgment debtor,

which suit may be maintained, under the proaver and show by the evidence that the at

visions of section 18 of the Code (Wilson's Rev. tached property was restored to the defend- & Ann. St. 1903, § 4216), within two years aftant, or there can be no recovery on the un

er the date of the discovery of the fraud. dertaking."

[Ed. Note.--For cases in point, see Cent. Dig. It is also admitted by counsel for the ap

vol. 30, Judgment, $ 838.]

2. SAME-TIME FOR APPLICATION. pellant in their trial that the Custer County

The provisions of sections 562 and 569 of State Bank was not indebted to the plain-| the Code (Wilson's Rev. & Ann. St. 1903, gs tiff, the Drovers' Live Stock Commission | 4760, 4767), which limits the time in which a Company, in any sum wbatever, and it is procedure thereunder may be instituted to reinsisted that the bank should not have been

verse, vacate, or modify a judgment to two

years from the date of the judgment, does not made a party to the suit. The record as apply, so as to estop the bringing of an equitapresented by the plaintiff (and by the record ble action to cancel a judgment on the ground we mean the bond) recites that the property

of fraud within two years from the date of the

discovery of such fraud. attached was the property of the Custer

3. SAME-PLEADING. County State Bank, and the conditions of the

In an action to set aside a judgment on bond are that the bank and the sureties on the ground of fraud practiced in procuring the same, where the petition alleges and shows that court in the rendition of the judgment now judgment has been obtained upon a chose in complained of; it being alleged that John action which the party obtaining such judg

E. Ford during the lifetime of Francis R. ment did not at the time own, but that the same was owned and had been reduced to judg

McKennon sold said items to said McKenment by a third party, and where by such peti- non, who afterwards died, and whose estate, tion it is shown that the petition upon which at the suit of T. F. McKennon, administrathe alleged fraudulent judgment was entered set out that such third party claimed some in

tor, recovered judgment for and on account terest in the chose in action with reference to of. The petition shows that on November which the plaintiff was not fully advised, and 29, 1899, the Guthrie National Bank, in an prayed an order that such third party be im

action brought against the city of Guthrie, pleaded and brought in, that the right of all the parties might be fully adjudicated, which

recovered judgment against the city of Guthpetition was verified, such verification reciting rie upon the same items of debt that McKenthe fact that the plaintiff was the owner of the non, as administrator, sued for and recoverchose, except such interest as such third party might have therein, held, that such petition

ed upon November 20, 1900, a year subsedoes not state a cause of action, because it ap- quent to the judgment in favor of the bank pears therefrom that the plaintiff had notice for the same. The petition alleges: That of such facts and circumstances as would put the McKennon judgment was and is fraudua person of ordinary prudence upon inquiry, which inquiry would have disclosed the de

lent and was fraudulently obtained, for that fense, if any, the defendant in such action T. F. McKennon, at the time of bringing such might have.

suit as administrator, knew that the estate (Syllabus by the Court.)

of Francis McKennon did not own such items Error from District Court, Logan County; of indebtedness. That Adelbert Hughes, city before Justice Jno. H. Burford.

attorney of the city of Guthrie, confessed Action by the city of Guthrie against

judgment against the city in favor of T. F. Chandler McKennon, administrator. Judg

McKennon, administrator, relying upon the ment for defendant, and plaintiff brings er

sworn statement of T. F. McKennon in the ror. Affirmed.

verification of plaintiff's petition and his ver

bal statement to the effect that Francis R. James IIepburn, City Atty., and Lawrence

McKennon, deceased, was at the time of his & Huston, for plaintiff in error. J. C.

death the owner and holder of such items of Strang and Devereux & Hildreth, for defend- indebtedness, when in fact he was not so ant in error.

the owner of such items; but, believing the

same to be true because of such representaGILLETTE, J. This action was commen- tions, he entered into a written stipulation ced October 30, 1903, in the district court of upon the filing of which the judgment comLogan county, by filing in said court a peti- plained of was entered, which, among other tion setting forth facts which were relied on things, contains a stipulation as follows: "It to support a judgment vacating and holding is further stipulated that plaintiff herein is for naught another judgment of said court the owner and holder of the claims mentionin favor of the defendant and against the ed, set out, and sued upon in this action." plaintiff, city of Guthrie, which judgment so That when the said T. F. McKennon brought sought to be vacated was entered upon an such suit against the city of Guthrie the agreed statement of facts November 20, 1900, mayor and members of the city council and in the sum of $1,231.86. A demurrer was the city attorney of the city of Guthrie were filed to the petition and sustained by the deceived by the sworn statement and allegacourt February 16, 1901. Four days later, tions of said T. F. McKennon, in his said acon February 20, 1904, an amended petition tion against plaintiff, and by his oral and was filed, against which another demurrer positive statements made to Adelbert Hughes, was lodged and sustained February 13, 1905. city attorney, and to others, during the penThe case comes to this court, praying judg. dency of said action in court; and they rement reversing the order of the lower court lied upon and believed the allegations in said sustaining such demurrer.

petition contained, and the oral allegations of It appears from the petition filed that the said T. F. McKennon, and had no reasonable judgment complained of was based upon cer- cause or ground to believe otherwise until tain items of indebtedness of the city, which long after judgment had been entered upon were allowed, and warrants issued to John said items in favor of said T. F. McKennon E Ford by a commission appointed and act- as aforesaid. The petition of T. F. McKening under and by force of an act of the Legis- non set out and stated as follows: "Plaintiff lature of December 23, 1890, entitled "An act avers that the Guthrie National Bank claims for the purpose of providing for the allow- some interest in a portion of said claims, the ance and payment of the indebtedness hereto- exact nature of which the plaintiff is not fore created by the people of the cities of able to state.” And in the prayer for judgGuthrie, East Guthrie, West Guthrie and ment it asks that the Guthrie National Bank Capitol Hill, and now consolidated into the might be impleaded and required to set up city of Guthrie” (St. 1890, $ 553), which items any claim it had upon the items of indebtedof indebtedness are numbered and described, ness sued upon. The verification of the peand are shown by the petition to have been tition by T. F. McKennon contained the fol. the items of indebteduess considered by the lowing: "That he is the bona fide owner and holder of the claims described in the fore- sions of sections 569 and 562 of the Code, but going application and motion, to the best of rather by section 18 (Wilson's Rev. & Ann. his knowledge and belief, except such in- St. 1903, § 4216) which provides in substance terest, if any, as the Guthrie National Bank that an action for relief on the ground of may have or hold in a portion of the said fraud shall not be deemed to have accrued claims." The judgment complained of, and until the discovery of the fraud, and shall sought to be set aside, was entered upon the be barred within two years thereafter; the agreed facts, without making the Guthrie | petition alleging that the fraud complained National Bank a party or requiring it to come of was not discovered until July 15, 1903. in and set up its interest in said claims. As to the first proposition stated, the posiThat at the time the judgment was rendered tion of the plaintiff in error cannot be mainin favor of T. F. McKennon a stipulation tained. The judgment entered against the was entered into by counsel for said Mc- city and in favor of McKennon was so enKennon and the city attorney for said city tered November 30, 1900, under the proviwhich in terms set forth that said action was sions of sections 569 and 562, and the procesubject to appeal to the Supreme Court, but dure there provided, for the vacation of a that it was to be held and considered by the judgment, the statute of limitations began to parties as a pending action in the district run when the judgment was entered, and the court until a cause pending in the Supreme fact that it might be vacated or modified Court wherein the city of Guthrie was plain- upon an appeal does not affect the running tiff in error and one F. B. Lillie was defend- of the statute. Such statute began to run ant in error should be by the Supreme Court when the judgment was rendered, and the determined, and, when so determined, the right to proceed under such statute was bardetermination of the Supreme Court should red two years thereafter, and this time elapsbe entered in this case in all respects as ed one year before this action was commenthough the same had been appealed to the ced. The stay of execution, provided for in Supreme Court; that is to say, if the Lillie the agreement entered of record to the effect Case was affirmed by the Supreme Court. that the judgment should abide the detersuch affirmation should be entered and con- mination of the Supreme Court in the Lillie sidered as an affirmation by the Supreme Case, was equivalent to a procedure in error Court of the pending case, and a reversal to reverse, vacate, or modify the judgment would likewise operate as a reversal of the upon the grounds of error in the procedure said action. The record shows that the case by which it was obtained. Such agreement of City of Guthrie v. Lillie was finally dis- did not involve a question of fraud extraneposed of in the Supreme Court June 10, 1902, ous of the record, and therefore had no rewithout judgment upon the merits of the ap- lation to or bearing upon the question of peal. The petition averred that the plaintiff fraud practiced in obtaining the judgment. was without adequate remedy, except in The statute under consideration provides that equity, and prayed for judgment vacating the the limitations provided for shall begin to McKennon judgment, and for an order stay- run from the date of judgment, and we think ing and enjoining its enforcement by the it did begin to run in this case Xovember 20, said defendant McKennon.

1900, if the rights of the parties are to be Two questions are now presented for the measured by the limitations provided for in consideration of this court: First, was this sections 569 and 562. action at the time of its commencement bar- This brings us to the consideration of the red by the statute of limitations? and, sec- | second proposition of the plaintiff in error, ond, does the petition state facts sufficient to to wit, that the action may properly be susconstitute a cause of action in favor of the tained because of the fact that limitations plaintiff and against the defendant? On be- upon actions of this kind do not begin to half of the defendant in error it is urged that run against the right to maintain the same the two-year statute of limitations provided until after the discovery of the fraud. In for in sectionis 509 and 562 of Civil Code this we think the plaintiff in error is correct. (Wilson's Rev. & Ann. St. 1903, $$ 1767, 4760) Sections 509 and 562 are provisions of the governs the rights of the parties in this ac- Code of Civil Procedure which relate to protion, and that by reason of it the cause was ceedings to reverse, vacate, or modify judgbarred at the time it was commenced. In ments or orders in the courts in which they response to this position of defendant in

are rendered. Under such statute and the error the plaintiff in error presents two propo- | proceeding provided for an affirmative judgsitions—the first that, under the stipulation ment reversing, vacating, or modifying the "that the cause should remain a pending ac- judgment to which the proceeding relates tion until the Lillie Case was disposed of in would leave the action pending in the court the Supreme Court,” such case not having for trial as it stood before the alleged fraudbeen disposed of in the Supreme Court until ulent judgment was entered, or it would auJune 10, 1902, the two-year statute had not thorize the entry of some other judgment if, run at the date of the commencement of this as a conclusion of the proceedings, it should action, October 30, 1903; and, second, that be determined that the original judgment the right of the plaintiff to bring this action should be modified: and a proceeding for was not governed exclusively by the provi- such purpose, although based upon the ground of fraud in procuring the original said T. F. McKennon in his said action, and judgment, must be commenced within two by his oral and positive statements to Adelyears from the date of such judgment or the bert Hughes, during the pendency of said acproceeding will not lie. But that is not this tion, that he was in possession and control case. This is an equitable action to cancel of the items of indebtedness sued on, and or enjoin the enforcement of an adverse the owner of the same, which statements right, upon the ground that it was fraudu- were false, and made for the purpose of delently obtained; and we think it immaterial ceiving the plaintiff and its officers, and did whether the right obtained by fraud and de- deceive them, and that by reason of the verception was a judgment which might be en- ified petition of said McKennon and his said forced against the person deceived and de- declaration of ownership Adelbert Ilughes, frauded, or the acquiring by such means of city attorney of said city, was dereived, and title to specific real or personal property. because of such deception entered into the The injury complained of amounts to the same stipulation under and by force of which the thing. It is the deprivation of legal right judgment was rendered, which stipulation, and equity, and this action is brought for the among other things, admitted the ownership purpose of canceling a judgment or a right by T. F. McKennon as administrator, of the complained of as having been fraudulently items sued on. We are of the opinion that obtained. The judgment prayed for seeks this is not a sufficient allegation of fraud to the absolute cancellation and nullification of justify the annulment of a judgment enterthe judgment complained of, on the ground of ed in a cause upon a stipulation or agreefraud, and was, therefore, a civil action, as ment as to the facts in the case. We think contemplated by article 3 of the Code of Civil that the declaration of a party litigant to Procedure, and subdivision of section 18 of the effect that he has a right to recover besaid article, which provides that the same cause of his ownership of the chose in acmay be brought within two years after the tion is not the practice of such deceit and discovery of the fraud, or, rather, that such fraud as is contemplated in the axiom that (ause of action did not accrue until the time fraud vitiates and annuls any right acquired

the discovery of the fraud, and might be by it. brought within two years from that date. In the consideration of this matter, howThe petition alleges that the fraud or fraudu- ever, we are not left to the consideration lent transaction complained of was not dis- alone of the bare allegations of the petition covered until July 15, 1903, and, the action to the effect that the defendant was deceived having been brought October 30, 1903, it was by T. F. McKennon; for, turning to bis brought within time under the provisions of (McKennon's) petition and verification of this statute, and was not barred by its lim- the same, shown by the record, we find the itations.

allegations such as to put a man of ordinary The demurrer under consideration chal- prudence upon his inquiry, for it is there lenges the sufficiency of the petition to con- averred “that the Guthrie National Bank stitute a cause of action; and, considering claims some interest in a portion of the said the allegations of the petition under this claims, the exact nature of which the plainground of the demurrer, we say generally tiff is not able to state." And in the prayer that a party may have a good defense to an for relief the interest of the Guthrie Nationaction, but, if he fails to make such defense al Bank was noted in the following lanwhen the case is called for trial, he will not guage: “Plaintiff further prays that, if it be permitted to come in afterwards and say be necessary in order to fully determine the that the judgment was wrong, simply because matters and things herein involved, the said he had a good defense. On the other hand, Guthrie National Bank may be impleaded if a party is prevented by fraud from mak- herein and required to set up any claim ing his defense, such fraud vitiates any right which it may have upon any of the said acquired. This brings us to a consideration claims hereinbefore set out and referred to.” of the petition with reference to the allega- And the verification of said petition by T. tions of fraud therein contained, and the F. McKennon was as follows: "T. F. Mcsufficiency of such allegations to justify an Kennon, being first duly sworn, upon his annulment of such judgment on account of oath deposes and says that he is the adminthe acts of fraud therein complained of. istrator of Francis R. McKennon in the

The allegations of the petition hereinbefore above-entitled proceeding; that he is the stated and set forth, and which are relied on bona fide owner and holder of the claims deas sufficient to vitiate the judgment com- scribed in the foregoing application and moplained of, are, first, that T. F. McKennon tion, to the best of his knowledge and be. knew, when he brought suit as administrator lief, except such interest, if any, as the Guthof the estate of Francis R. McKennon, that rie National Bank may have or hold in a such estate was not at that time the owner portion of the said claims." Yow, when we of the items of indebtedness for the recovery remember that the basis of this action is the of which judgment was asked; second, that fact, as alleged, that the Guthrie National the mayor and members of the city council, Bank, at the time McKennon brought this including the city attorney, were deceived by action, had already reduced the items of debt the sworn statements and allegations of the l claimed by McKennon to judgment, and it is

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because of that alleged fact that it is now ' was guilty of fraud and undue influence, and sought to set aside the judgment of McKen- ! that the other party was incapable of contract

ing by reason of being intoxicated at the time, non, we have before us, we think, not an ac

and the evidence reasonably supports such findtionable question of fraud, but rather a ques- ings, they will not be disturbed by this court tion of negligence, in which the one guilty on appeal, on the theory that they are against of negligence is seeking relief from the legiti- the weight of the evidence. mate result of his own acts; for the peti

[Ed. Note.-For cases in point, see Cent, Dig. tion of McKennon upon which judgment was

vol. 3, Appeal and Error, $$ 3979-3982.]

3. TRIAL-GENERAL FINDINGS. (onfessed gave notice of the possible adverse

A general finding for a party to an action claim of the Guthrie National Bank, and the

is equivalent to finding in his favor each fact verification was modified to except the claims in issue in the case. of the Guthrie National Bank, whatever they [Ed. Yote.-For cases in point, see Cent. Dig. might be. To confess judgment upon a peti

vol. 16, Trial, $. 960.] tion containing such allegations precludes

(Syllabus by the Court.) the plea that the confession was the result

Error from District Court, Logan County ; of fraud in claiming to be the owner of the before Justice Jno. H. Burford. items sued upon, when in fact they were

Action by Robert 1. Gaffney against Alowned by the Guthrie National Bank.

bert Cline and others. Judgment for defendThe courts from time immemorial have

ants, and plaintiff brings error. Affirmed. laid down the doctrine in fraud cases that what is sufficient to put a man of ordinary

Cotteral & Hornor, for plaintiff in error. intelligence upon inquiry touching a particu- Martin, Tibbetts & Green, for defendants in lar fact is equivalent to the ultimate knowl- error. edge of the existence of such fact; and. tried by this rule, the city of Guthrie must BURWELL, J. Robert Gaffney, on Novembe held to have had knowledge of the right ber 4, 1903, traded to Albert Cline lots nuniof the Guthrie National Bank in the items bered 7 and 8 in block numbered 6 in West sued on at the time judgment was confessed, Guthrie, Logan county, for a farm of 80 and which judgment is now herein complain- acres, described as follows: The N. 12 of ed of. The allegations in and rerification of the S. W. 14 of section 29, in township 17 N., the petition of McKennon, which was before of range 1 W., in Logan county. The deeds the lower court at the time the demurrer of the respective parties were executed and was sustained to the petition herein, were, delivered to P. Jelsma, who was to hold them, we think, sufficient to justify that court in as well as a note for $367.67 and a mortgage sustaining a demurrer to the petition, which on the farm land executed by Gaffney to attempted to set up a cause of action upon Cline for the difference in the trade, until the ground of fraud in procuring the judg- abstracts were furnished. These papers were ment complained of. The following author- sealed up in an envelope upon which was inities are instructive upon this proposition: |dorsed by the parties the following: “DelivWood v. Carpenter, 101 U. S. 111, 25 L. Ed. er these papers, when called for by R. A. 807: U. S. v. Throckmorton, 98 U. S. 61, 23 Gaffney or Albert Cline, as soon as abstracts L. Ed. 93 ; Crim v. Handley, 94 U. S. 6.2, show title as per deeds." Jelsma having re24 L. Ed. 216; Andres v. Millari (C. C.) fused to deliver the papers conveying the 70 Fed. 315; Nevins v. McKee. 61 Tex. +12; SO acres of land to Gaffney, the latter comSnowy. Mitchell, 37 Kan..639, 15 Pac. 224, menced an action to compel him to do so. 16 Pac. 737; Brownson v. Reynolds, 77 Tex. Cline fileil an answer, which was a general 2:34. 13 S. W. 986; Carolus v. Koch, 72 Mo. denial, and also alleged fraud and undue in(+5; Zellerback v Allenberg, 67 Cal. 296, 7 fluence, and claimed that at the time the Pale: 908.

papers were executed he was intoxicated and The judgment of the court below is affirm- incapable of making a legal contract. The ed. All the Justices concurring, except BU'R- answer contains other defenses, but we will FORD, C. J., who presided in the trial court, not discuss them, although they have been not sitting, and IRWIN and GARBER, JJ., considered. The court rendered juilgment for absent.

Cline and against Gaffney for costs, denying

plaintiff any relief, and ordered Jelsma to re(19 Okl. 197)

turn to Gaffney and Cline the papers execut

ed by them, respectively. GAFFXEY v. CLIXE et al.

The record really presents the question is (Supreme Court of Oklahoma. Sept. 5, 1907.)

to whether or not the evidence supports the 1. APPEAL · REVIEW-SUFFICIENCY OF Evi

judgment. We think it reasonably supports DENCE. Ajudgment will not be reversed by this

it, and therefore must affirm the same. The court on actount of the insufficiency of eri- court evidently concluded that Jelsma, who qenen. when the evidenre reasonably supports Cline alleged pretendeil to act as his agent, the same.

conspired with Gaffney to cheat and defraud [Ed. Yote.For cases in point, ser (ent. Dig. vol. 3, Appeal and Error. $8 3928–3934.]

Cline out of his farm, and that Jelsma tried 2. SAJE-FixpisGS OF TRIAL Cou'RT.

to get Cljne drunk for that purpose. That When a trial court, in a case tried to it

(line was drunk there can be no doubt under without a jury, finds that one of the parties the evidence, and as to whether or not he

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