Weir v. Vail

Myrick, J. This is an action brought on a judgment recovered by plaintiff against defendant in the Supreme Court of the State of New York. The court below permitted the defendant to go behind that judgment and interpose as a defense matters existing when the action on which the judgment was rendered was brought, and, finding that by fraudulent practices the defendant had been prevented from having the benefit of his defense, enjoined the collection of the judgment. The correctness of such action on the part of the court is the question for consideration. •

[467]Weir, Vail, and one White had entered into an agreement with reference to obtaining franchises for the construction and operation of tramways in cities of Great Britain, and under that agreement steps had been taken by the parties without profitable results. The defendant Vail claims that at this point Weir and White had abandoned the agreement, and that he had the right to proceed with the enterprises alone. He did proceed, with favorable results, and realized a large sum. The action in the Hew York court was brought by Weir against Vail, to recover his asserted proportion of the amount so realized. White was made a party defendant, he having been a party to the agreement. Sammons was served on Vail May 15, 1872; on that day he had attorneys in Hew York for his interests, and on the 10th of June, 1872, his answer was filed by them. When the suit was commenced, Vail was a resident of England, and was temporarily in Hew York. He soon left Hew York, and never again returned there. The answer of Vail set up the failure of Weir to perform the agreement on his part, and that the agreement had been cancelled by the parties. This is substantially the defense now interposed, other than alleged fraudulent practices in the procuring of the judgment. Three years after the suit was commenced, viz., May 28, 1875, under a commission issued out of the Hew York court, the deposition of Vail was taken in London, which was used at the trial. This deposition contained several letters from Weir and White, and Vail’s answers to forty-five interrogatories. These answers went quite fully into the transactions between the parties, and the proceedings had by them iii reference to the subject-matter of the agreement, how fully, as compared with the evidence of Vail on the present trial, need not be considered. Sufficient to say, that he was apprised by the suit of the claim made by the plaintiff; he employed attorneys to defend him, his answer was filed, and his deposition was taken and used on the trial ■ it thus appears that he had the opportunity of being heard, and was heard, so far as he and his attorneys then deemed important. In 1876 the trial in Hew York was had. At that trial (his attorneys being present), the testimony of Weir and White was taken, and was in conflict with the views of Vail. On the 5th of December, 1876, the court filed its findings, and adjudged that Vail was