Steen v. March

HAYNES,C.

—Action to set aside a judgment and to restrain its enforcement. Defendants’ demurrer to the complaint was sustained, and plaintiff having failed to amend, judgment was entered against him, and he appeals.

Pending the action, William F. March, the principal defendant, died, and the administratrix of his estate was substituted.

The complaint is very long, but a statement of the facts, so far as requisite to a decision of the material questions involved, is as follows: —

In December, 1888, William F. March, and George Olive, and John Ross were mutually interested in the construction of a steam-schooner, and were endeavoring to obtain money therefor. The amount required was thirty-two thousand dollars, and this was divided into shares of five hundred dollars each. These parties proposed to plaintiff that if he would execute his note for five hundred dollars, payable to the order of Ross at one year after date, upon the completion of the vessel

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within that time, and the payment of the note, they would procure a certificate for one share in said vessel to be issued to him. The note was thereupon executed by Steen and placed in the hands of Olive.

Afterwards, Ross indorsed and delivered said note to March, and March, before its maturity, for the face value thereof, sold, indorsed, and delivered it to one O. M. Button. These transfers were made without the knowledge of Steen, the maker of the note, and it is alleged that March gave Ross no consideration for the note, and it is also alleged that Steen received no interest in the vessel, and that the consideration of the note wholly failed at the maturity thereof; that in February, 1892, Button obtained judgment upon said note against March and Steen, and afterwards assigned said judgment to one Joseph Blum, who caused execution to be issued and levied upon certain property of March, which was afterwards sold, and the net proceeds, amounting to $596.10, was credited upon said judgment, leaving a deficiency of $89.65.

Afterwards, in December, 1892, March brought suit against Blum, Steen, and the sheriff to recover damages for the sale of his property, and obtained judgment against Steen for $943.41, and this action is prosecuted by Steen against March and Devoe, his assignee, to vacate said judgment and enjoin its collection, upon the ground that in the action of Button against March and Steen upon said note, and in the action of March against Blum, Steen, and the sheriff, in which the judgment was rendered that is now sought to be vacated, March falsely and fraudulently testified that he paid Ross full value for the note; that he, Steen, had no personal knowledge upon that subject; that Ross had left this state before Button brought suit; that during the pendency of each-of said actions he had made diligent efforts to ascertain where Ross was, but without success until December 1, 1896, some two or three weeks before commencing this action.