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eBook details

• Title: Bullard v. Zimmerman Et Al.
• Author : Supreme Court of Montana
• Release Date : January 24, 1930
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 63 KB

Description

Judgments ? Setting Aside as Fraudulent ? Inherent Power of Court of Equity ? Complaint ? Sufficiency ? Surplusage ? Attorney Violating Oral Stipulation ? District Judge and Attorney as Witnesses ? Mileage and Per Diem ? When Proper. Judgments ? Court of Equity has Inherent Power to Set Aside Judgment Procured by Fraud ? "Extrinsic Fraud" ? Definition. 1. Though the power of a court of equity to set aside a judgment obtained by fraud is inherent, it may be exercised only for fraud which is extrinsic or collateral to the matter tried by the court, i.e., when the effect of the fraudulent acts of the guilty party was to prevent the innocent one from having a trial or from presenting his case fully, it being immaterial, however, whether the fraud was actual or constructive. Same ? Setting Aside Fraudulent Default Judgment ? Evidence ? Sufficiency ? Attorney Violating Oral Stipulation. 2. Evidence in a suit to set aside a judgment secured by fraud, showing that upon the strength of an oral stipulation entered - Page 272 into between the attorneys for plaintiff and the attorney of defendant that the former would not be required to answer in an action for the foreclosure of a mechanics lien until the propriety of an order in the proceeding had been determined by the supreme court on an appeal he intended to take but which was not taken, no answer was filed within the time allowed by order of court; that notwithstanding such stipulation defendants attorney caused plaintiffs default and the judgment complained of to be entered, held sufficient to warrant a decree setting the judgment aside for fraud. Same ? Complaint to Set Aside Default Judgment Procured by Fraud ? Actual and Constructive Fraud ? When Allegations of Actual Fraud Surplusage. 3. Where the complaint in a suit to set aside a judgment for fraud sets forth sufficient facts showing constructive fraud, the fact that it also alleged actual fraud, not sustained by the evidence, does not render a decree setting aside the judgment open to the objection of failure of proof of the allegations of the complaint; in such a case, the allegations of actual fraud may be treated as surplusage. Same ? Setting Aside Fraudulent Judgment ? Fact That Attorney Relied on Oral Stipulation Instead of Insisting on Written One not Cause for Refusing Relief. 4. The right to relief from a fraudulent judgment secured under the circumstances set forth in paragraph 2 above does not depend upon the validity of the oral stipulation (court rules requiring stipulations of that nature to be in writing), but upon the question whether it was relied upon by plaintiff and made use of by defendant to obtain an unjust judgment. Same ? Fraudulent Default Judgment ? Complaint ? Sufficiency. 5. Complaint in a suit to set aside a judgment by default secured through fraud, held not insufficient as not showing that plaintiff, as a member of a mining association, did not have a meritorious defense to the action in which the objectionable judgment was rendered. Costs ? Witness Fees ? When District Judge Entitled to Fees. 6. A district judge whose district is composed of more than one county and who, while at the county seat of a county in his district other than that of his residence on judicial business, is called as a witness in a cause and remains there for the purpose of giving his testimony, is entitled to witness fees. Same ? Nonresident Attorney Subpoenaed as Witness Entitled to Mileage from State Line to Place of Trial, When. 7. An attorney, nonresident of Montana at the time he was subpoenaed as a witness for plaintiff in a suit to set aside a fraudulent default judgment, who had acted as plaintiffs counsel in the action out of which the equitable suit arose but was not representing him therein, held properly entitled to mileage from the state line to the place of trial and return, under section 4936, Revised Codes 1921.

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