Heller v. Dyerville Manufacturing Co.
Before: Fleet
Synopsis
Injunction against Enforcement of Judgment—Fraud in Procurement—Stipulation—Modification— Insufficient Complaint—Construction against Pleader.—A complaint in an action brought more than six months after the entry of judgment in a former action, to enjoin its enforcement, as having been procured by fraud in violation of a stipulation for judgment pursuant to the prayer of the complaint in the former action, and to secure the modification of such judgment so as to conform to the stipulation, is to be construed most strongly against the pleader, and does not state a sufficient case of fraud in the procurement of the judgment, where it merely alleges in general terms that the attorney for the plaintiff in the former action “for the purpose of cheating and defrauding” the defendants therein, who are plaintiffs in the new action, presented to the judge a decree prepared by said attorney, which he represented to be in accordance with the stipulation, whereby the plaintiff in the former action obtained relief not warranted by the complaint nor by the stipulation, and that the judge relied upon such representation and signed the decree, but does not allege specifio facts to point the general assertions of fraud, nor that the representation of the attorney to the judge was made with intent to deceive, nor that the attorney then did not know or believe it to be true, and shows that the decree recited the substantial part of the stipulation on file, and that the judge had the same means of knowing the truth of the representation as the attorney, and does not negative the presumption that the judge read over and examined the stipulation before signing the decree, nor show that knowledge of the decree was intentionally concealed from the defendants in the former action, whose duty it was to keep track or the case; nor that such knowledge was prevented by any act of the plain, tiff in that action, but states facts showing complainants’ actual know!» edge of the decree within six months from its date.
Id.—Representation of Attorney to Judge—Presumption against Deceit,—In the absence of an averment to the contrary, it will be presumed that a representation made by an attorney to a judge in the procurement of a'decree was without deceit, and with a belief iu its truth; and fraud cannot be predicated of a statement or representation made without knowledge of its falsity, or an intent to deceive thereby, however implicitly it may have been acted upon,
to. — General Averments of Fraudulent Purpose — Conclusions of Pleader.—General averments of a fraudulent purpose in the procurement of a decree, standing alone, and unaccompanied by facts which in themselves disclose fraud, are insufficient to give the transaction even a colorable aspect of fraud; but such general averments are to be regarded as merely the conclusions of the pleader, embracing no issuable character, and are not admitted by demurrer,
Van Fleet, J. This is a suit in equity brought in the superior court of the city and county of San Francisco to secure the modification of a judgment theretofore entered in that court, upon the ground that it was procured by fraud.
The complaint alleges that in March, 1891, the present defendant, the Dyerville Manufacturing Company, brought an action in said superior court against M. Heller & Sons, the plaintiffs here, to enjoin the latter from pirating or infringing a certain trademark or label of said Dyerville Manufacturing Company, and for damages for an infringement already perpetrated. That, thereafter, on August 3, 1891, the parties in that [131]action entered into a stipulation in writing that judgment should be entered therein enjoining the defendants “ as prayed for in the complaint,” and for costs, but without damages. That afterward, on August 7, 1891, the attorney for the plaintiff in that action, “ for the purpose of cheating and defrauding these plaintiffs,” presented to the judge before whom said action was pending a decree prepared by said attorney, which the latter represented to the judge “was in accordance with the stipulation”; that the judge relied upon such representation and signed said decree, and that the decree -was thereupon, on said seventh day of August, filed, but was not entered until April 26, 1892.
It is alleged that Heller & Sons, the defendants in that action, had no knowledge of the filing of said decree “until subsequent to the 26th of April, 1892”; that the same was prepared without their knowledge or that of their attorneys, and no copy thereof was submitted to them; that no steps were taken under said decree by the plaintiffs in that action, the defendants here, until more than six months after the same had been signed .and filed; and that it was prepared and filed by the plaintiff in said cause and its attorney “ for the purpose of defrauding these plaintiffs, and that therein and thereby the defendant herein did obtain relief it was not entitled to, either by the terms of its complaint or by the terms of said stipulation.” The said decree is set out in haec verba, and the complaint in that action is attached as an exhibit, and made a part of the complaint in this.
The complaint further alleges, what we regard as largely if not wholly immaterial here, in substance, that since August 3, 1891, said Heller & Sons have not infringed said trademark or label, but that, notwithstanding, they were, on July 29, 1892, cited to show cause why they should not be punished for violating the said decree, and that thereafter, on December 5, 1892, they were adjudged guilty of a violation thereof. That on December 10, 1892, they applied to the superior court in
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