Eldred v. White
Before: Beatty, McFarland
Synopsis
Action to Vacate Judgment—Unauthobized Appearance—Unexplained Laches—Insufficient Showing.—An action to set aside a judgment of foreclosure on the ground that the plaintiff, who executed the mortgage, and who was the defendant in the foreclosure suit, had never been served with summons, and that his appearance therein by attorney was unauthorized, cannot be maintained where it appears that the action was not commenced until more than a year after the date of the judgment, and no reason is shown why it was not commenced sooner, or why proceedings were not commenced under section 473 of the Code of Civil Procedure to obtain leave “to answer to the merits of the original action,” or why other remedies at law were not exhausted before the aid of a court of equity was invoked, and there is no averment or finding that he did not know of the former judgment at the time of its rendition, nor that he has a good defense to the action, nor that the judgment is not regular and valid on its face.
Id.—Relief in Equity—Prevention of Injustice—Plea of Statute of Limitations Kot Favored.—A judgment at law will not be set aside or interfered with by a court of equity except tor the prevention of fraud, or to relieve from substantial injury or gross injustice. A court of equity looks well to the consequences of its acts, and it will not readily nullify a judgment at law if the effect is to put it in the power of the judgment debtor to plead the statute of limitations to a debt which he does not deny to be justly due.
Id.—Defense Upon Merits.—In order to obtain equitable relief against a judgment alleged to have been fraudulently obtained, it must be averred and shown that .there is a valid defense on the merits.
Opinion — McFarland
McFarland, J. This is an appeal by plaintiff, upon the judgment-roll, from a judgment in favor of defendants.
The action was brought on the equity side of the court, to set aside and annul a judgment and decree of foreclosure rendered against plaintiff in the superior court on April 23, 1890, upon three certain promissory notes, and a mortgage made and executed by plaintiff to one Jacob Updegraff, and assigned by him to White, defendant herein. The main ground upon which .appellant rests his claim for relief is, that in the foreclosure suit an attorney at law appeared for appellant (defendant therein) without authority, and filed a demurrer for him; that afterwards, by stipulation of attorneys therein, alleged to have been forged, the demurrer was withdrawn and judgment entered against appellant; and that no summons in said suit was ever issued or served on appellant. There are also some averments about certain unauthorized changes made in the complaint in the foreclosure suit, which we do not deem material.
This present action was not commenced until thirteen months after the date of the judgment in the foreclosure suit; and no reason is shown why it was not commenced sooner, or why appellant did not proceed, under section 473 of the Code of Civil Procedure, to obtain leave “to answer to the merits of the original action,” or why he has not exhausted other remedies at law before invoking the aid of a court of equity. There is no averment or finding that he did not know of the former judgment at the time of its rendition. Although there is a general averment in the complaint that appellant stated the facts of the cause in which the former judgment was [604]rendered to certain attorneys, and was advised by them that he has a good defense, there is no averment that he has such defense, nor of any facts constituting such defense. There is no averment or finding of the insolvency of the attorney who appeared for appellant in said cause, who was himself a defendant in said cause, and is not charged with having willfully or fraudulently appeared for appellant. It is not averred or found that appellant did not make and execute the notes and mortgage, or that the judgment was taken for too much, or that it was unjust; and the court found that appellant has not thereby “ sustained any damage.” It is not claimed that appellant was not generally within the territorial jurisdiction of the court rendering the former judgment; or that said judgment is not regular and valid on its face.
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