Smith v. Young

SCHAUER, P. J.

This is a suit in equity to vacate a judgment of the municipal court on the ground of extrinsic fraud. Issue was joined on the complaint and the answer. This appeal upon the judgment roll alone is well taken in that the findings do not support the judgment.

Paragraphs VI, VII, VIII, IX, and X of the complaint comprise allegations that the account sued upon in the municipal court action had been paid before the action was filed, that a receipt evidencing such payment had been given to plaintiff herein Geo. W. Smith (defendant therein), that when summons was served in such municipal court action the defendant Smith exhibited such receipt to the attorney for the plaintiff in that action, told him that his (Smith’s) attorney was out of the city and was told by- such attorney for the plaintiff that “a mistake had been made . . . that it would not be necessary for him to consult his attorney, as he intended doing nothing further in the said action; and that at said time and place [such attorney for the municipal court plaintiff] executed and delivered to the plaintiff ... a release of the property theretofore attached in said action; and . . . then and there represented . . . that if the said Geo. W. Smith was willing to drop the matter that he would also. . . . That the aforesaid representations [made by the attorney] were untrue, and were made in order to influence the plaintiff to prevent him from interposing his defense to said action. . . . That the plaintiffs [defendants therein] relied upon said representations ... in that they failed to file their answers in said action.”

The answer in this action denies each and all of the recited allegations of the complaint, but the trial court made no finding of fact on any of such issues except that it found that plaintiff Geo. W. Smith did go to the office of the attorney for the plaintiff in the municipal court action, did exhibit a receipt in the form of a statement for the account endorsed “paid in full,” and that a release of attachment of two automobiles was given to Mr. Smith by the attorney. The trial court also found that plaintiffs here “were prevented from filing an answer and offering a defense to said Municipal Court action by reason of the fact that the defendants

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George W. Smith and Mary E. B. Smith believed that when the ears were released from the writ of attachment . . . that nothing further would be done in said Municipal Court action. ’ ’