Spencer v. Vigneaux
Before: Cope, Field
Synopsis
In an action upon a judgment, the judgment debtor may set up in bar of a recovery matters which were a proper ground of defense in the original action, accompanied with a showing that he was prevented from availing himself of the defense in the former action by his ignorance of the facts on which it rested, and that this ignorance was not imputable to any negligence or laches on his part.
S. sued V., G. & D. to recover §22,000, alleged to be a balance due from them as partners on account of certain mercantile transactions. Defendant V., who was the managing partner of defendants’ firm, had unbeknown to his copartners made a payment of $10,000, which should have been credited upon the amount demanded by plaintiff, but of this fact G. and D. were kept in ignorance, and V., conspiring with the plaintiff to conceal the payment, induced his codefendants to suffer a judgment for the full amount claimed. Subsequently, G. and D. having paid on the judgment more than the amount for which it should have been rendered, discovered the fraud, and the present action having been commenced by S. thereon to recover the balance, they set up these facts as an equitable defense ; Held, that the defense was permissible, and sufficient to defeat the action, and that defendants were entitled to an injunction against the enforcement by plaintiff of the original judgment.
Defendant D., in his answer, stated that he had been informed before the first trial that the $10,000 payment had been made by V., but that he was assured by V. that such was not the fact; that the papers and books of the firm were in W. ’s possession, and access to them could not be had, and that he had no per■sonal knowledge of the fact, or means of ascertaining or proving it upon the former trial: Seld, that this statement did not show such negligence or laches on D.’s part as to prevent him from now availing himself of the defense.
It was not negligence on the part of D. to fail to make an application for a continuance, it being evident that he could not have made a showing sufficient for that purpose, and that the application would have been a mere matter of form.
Cope, J. delivered the opinion of the Court—Field, C. J. concurring. This is an action to recover a balance alleged to be due on a judgment rendered by the late Superior Court of the city of San Francisco. Two of the defendants answer, charging fraud in the procurement of the judgment, and claiming that there is nothing legally or properly due thereon. The alleged fraud consists in the concealment of a credit of $10,000, to which the defendants were entitled on the indebtedness upon which the judgment was obtained. The facts in regard to this credit are clearly made out, and it is evident that a conspiracy existed between the plaintiff and the defendant Vigneaux to defraud the other defendants of the amount. The credit arose from a payment by Vigneaux, and the Court below finds that the defendants Grisar and De Boom had no knowledge of this payment during the pendency of the former suit. The answer of De Boom admits that he was informed of the payment before the judgment was rendered, and the plaintiff contends that the finding is in conflict with this admission. There is certainly an apparent inconsistency, but we are of opinion that there is really no conflict, and that the finding is strictly in accordance with the answer. It is expressly declared that De Boom had no personal knowledge upon the subject, and it is alleged that upon inquiry of Vigneaux in relation to it, he denied having made the payment. It [449]is also alleged that De Boom was so situated as to be unable to ascertain the facts, and it is averred that Vigneaux was examined as a witness in the case, and testified to the correctness of the demand upon which the suit was brought. In effect, therefore, the answer shows that De Boom had no actual knowledge of the payment; and that the means of acquiring such knowledge were entirely beyond his reach. So far as the answer of Grisar is concerned, no objection of this character is interposed; and we see nothing in the record for which the plaintiff is entitled to a reversal.
The authorities cited by the counsel for the appellant on the question as to whether the defense set up is not to be regarded as res judicata, have no application. The principle enunciated is undoubtedly correct, but there was no actual adjudication upon the matter in controversy, and this principle cannot he invoked to sustain a fraud.
In Borland v. Thornton (12 Cal. 440) and in Riddle v. Baker, (13 Cal. 295) the rule governing cases of this character is clearly laid down.
The judgment is affirmed.
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