ferred to as the defendants) and in his third, be paid to plaintiff, with the right reserved, amended complaint alleged as follows: Plain- however, to plaintiff to commence an examtiff is the administrator of William Hender- iration of the books and accounts of the Gibson, who died in December, 1915. Henderson son Copper Company on or before January 1, being indebted to the defendant the first Na- 1918, and to proceed with the same in a dilitional Bank of Globe in the sum of about gent manner to ascertain whether one-half of $17,800, transferred to it as security certain said stock was entitled to a liquidation value properties including 35,327 shares of the of more than $2.50 per share, being the capital stock of Gibson Copper Company. amount paid to plaintiff as the consideration After plaintiff's appointment as administra- for his claim to all the stock, the suit to retor, he applied to defendant Greer, president cover the stock to be dismissed by order of of the bank, for the property and effects of the court, upon motion of the parties to the his intestate that might have been left over stipulation. This stipulation was made Noafter paying the obligation due the bank, and vember 27, 1917, and filed in the court, the was informed by Greer that said properties money paid to plaintiff, and the cause dishad been exhausted to pay Henderson's obli- missed as against the bank, Greer, and Robgation and that therefore the bank had none inson, the accounting being the sole issue left of said assets. Thereafter, and on April 4, to be thereafter determined. It is then al1917, plaintiff caused the defendants Greer leged that upon plaintiff's examination of the and Towle to be cited to appear and testify records of the Gibson Copper Company he in accordance with the provisions of para- found such statements to be false, in this, graphs 861 to 864, Civil Code, in the probate that at the time defendants Greer and Rob proceedings, and upon such appearances inson appropriated the stock, Henderson's these witnesses deposed as follows: Greer, indebtedness to the bank had been more than that he had been president of the bank paid off and satisfied, and that the represensince 1912; that after the bank had applied tation that Gibson Copper Company received all the securities, with the exception of the only the sum of $250,000 in cash and stock stock of the Gibson Copper Company, to pay was untrue, in that it had received $250,000 Henderson's obligations, there remained a in cash and $250,000 shares of the capital balance due the bank of about $1,500; that stock of the Gibson Consolidated Copper he and the defendant Robinson (the latter Company. It is further alleged that the repbeing also an officer of the bank) paid the resentations made by Greer and Towle debank the balance due and had the stock ceived and mislead plaintiff and that he transferred to their own names, and, as the would not have made the agreement of comcomplaint alleges, “appropriated the same to promise but for his reliance on such statetheir own use and benefit." Towle's testi- ments. Judgment for damages is prayed for mony was to the effect that he had been sec- the difference between the amount received retary of the Gibson Copper Company for by plaintiff in the compromise settlement and about eleven years; that the records of that the actual value of the stock at the time of company showed that Henderson owned 35,- the compromise. 327 shares of the company's stock which, on December 20, 1913, was transferred to the bank; that the Gibson Copper Company sold its holdings for $250,000 to the Gibson Consolidated Copper Company, the former company receiving of the purchase price $143,000 in cash and the balance in stock of the new company. Plaintiff then brought suit against the bank, Gibson Copper Company, and the defendants Greer and Towle and Robinson "to recover the aforesaid 35,327 shares of the stock of the Gibson Copper Company, a corporation, and, upon the establishment of said claim, for an accounting to him as such stockholder by the Gibson Copper Company and F. F. Towle of the management of the affairs of the Gibson Copper Company." In that suit the defendants proposed to plaintiff to enter into a stipulation whereby the action was to be dismissed as against the defendants the first National Bank of Globe, Greer, and Robinson, and the alleged claim of plaintiff to said stock relinquished as against all the defendants, in consideration of $44,157 to To this complaint the defendants (with other pleas) demurred, generally and specially, which demurrers were by the court sustained, and the plaintiff declining to amend final judgment was rendered in behalf of the defendants, and the cause is here on appeal by plaintiff from such judgment. Jay Good, of Globe, for appellant. Morris & Malott, of Globe, for appellees. FLANIGAN, J. (after stating the facts as above). [1] The former action, brought by plaintiff to recover the 35,327 shares of the Gibson Copper Company's stock from defendants, was compromised by the stipulation and agreement of the parties under which plaintiff relinquished to the defendants all claim to the stock, suffered judg ment of dismissal, and received from defendants the sum of $44,157. The present action is brought to recover an additional sum in money to compensate plaintiff for the damages he alleges he sustained in parting with the stock at an inadequate price, under the agreement as executed, all of which he was (203 P.) induced to do by the fraudulent misrepresen-, Co. v. Otterson, 16 Ariz. 305, 146 Pac. 203, tations of the defendants of certain facts L. R. A. 1916E, 303; 23 Cyc. 1062. concerning the value of the stock. Stated as strongly as the case allows, plaintiff's contentions are, subtantially, that "as one injured by a fraudulent compromise may, instead of restoring the benefit received and suing at law or in equity to rescind and for equitable relief, retain what he has received and sue whoever may be liable for the consequences of the deceit, by which the compromise was obtained, and recover whatever damages resulted therefrom" (12 C. J. 357, and cases cited), that he may recover herein by treating the former proceedings as void so far as they execute the fraudulent scheme, and that this action is a permissible attack in law upon the entire and executed transaction, including the judgment, without restoration of benefits received, or offer to restore such benefits. If we were dealing with an agreement of compromise and settlement inter partes, of which a judgment of dismissal on the merits were not a component part, it may be that it would now be open to plaintiff in an action for the deceit to recover the amount of money which would, in the language of the court in Gould v. Cayuga County Bank, 99 N. Y. 333, 2 N. E. 16, make the compromise stand as "an honest compromise" by recovery of the excess value of the stock, being that portion of plaintiff's loss put upon him by the fraud of the defendants, and due solely to such fraud. But the case here is different. The plaintiff does not undertake to have set aside or impeached the judgment of dismissal as such; in fact, its force and effect, as precluding him of any further right to the recovery of the stock sued for in that case, is fully recognized. We think that the effect of the transaction, including the judgment, is to debar the plaintiff of any further claim or right to the stock, or its value, inconsistent with the terms of the compromise agreement, and the cause of action, if any theretofore existed, is merged in the agreement and judgment. The compromise agreement upon which the judgment was rendered fixed the value of the surrendered claim to the stock at the sum of $44,157, and it was executed accordingly by payment of that value to plaintiff and the rendition of judgment. Plaintiff had his opportunity to contest all issues tendered by his complaint in the action brought to recover the stock, for a part of the value of which he now sues, and having thus consented to this determination of the value of his claim, is barred and estopped from asserting the contrary, in any collateral proceeding. [2] As the action is not brought for the sole purpose of impeaching or overturning the former judgment, but has also for its object an independent relief or result, the attack made herein upon the former judgment is a collateral one. Tube City Mining, etc., [3] It is the general rule that it is not permissible for a party or privy to attack a judgment in a collateral proceeding on account of fraud. Black on Judgments, § 290. This rule is but a particular application of the more comprehensive one that "A judgment rendered by a court having jurisdiction of the parties and the subject-matter, unless reversed or annulled in some proper proceeding, is not open to contradiction or impeachment in respect to its validity, verity, or binding effect by parties or privies, in any collateral action or proceeding." 23 Cyc. 1055. [4] As the law recognizes no distinction between the effect of a judgment entered upon the agreement, consent, or compromise of the parties in its effect as a bar or estoppel, and the effect of one rendered upon contest and trial (23 Cyc. 1134, 728, 729; section 706, Black on Judgments; Crossman v. Davis, 79 Cal. 603, 21 Pac. 963; Merritt v. Campbell, 47 Cal. 542), so likewise it recognizes no distinction between such judgments when the attempt is made to impeach or contradict them on collateral attack. "The rule against collateral impeachment applies to every judgment, order, decree or judinot absolutely void." Black on Judgments, § cial proceeding, of whatever species, that is 246. And it is established by the weight of authority that judgments, such as the one here in question, are not subject to collateral attack for fraud (Clark v. Southern Can Co., 116 Md. 85, 81 Atl. 271, 36 L. R. A. (N. S.) 980; Morris v. Travelers' Ins. Co. (C. C.) 189 Fed. 211; Costello v. Cunningham, 16 Ariz. 447, 147 Pac. 701; Black on Judgments, § 290, et seq. [and cases cited]), or for any other reason than a lack of jurisdiction over the person or subject-matter which is apparent on an inspection of the record itself, Tube City Mining, etc., Co. v. Otterson, supra. The facts apparent in this case, and such as may well be the facts entirely consistent with the case pleaded, go far to illustrate the wisdom of the rules just enunciated. If the former judgment may be the subject of the attack attempted in this proceeding, then it follows that it would be proper to grant the relief prayed for, not only when it appears that the benefits received under the compromise agreement were neither restored, nor offered to be restored, but that such relief would be proper were the actual fact to be that the plaintiff, very shortly after making such agreement, obtained full knowledge of the falsity of the representations made to him and thereafter took no steps in any direct proceeding to vacate or annul the judgment. It also follows that the plaintiff, without resorting to any proceeding to vacate said judgment or to restore the status on writ of error in coupling the acts of the Where a petition by a purchaser alleged that she had made valuable improvements on the property for which she sought recovery, and the briefs of both parties indicated that the vendor had retaken possession of the property after default in payment, the record authorized the assumption by the Supreme Court the contract, though there was no express althat plaintiff had gone into possession under quo, or to submit himself or the cause to the "That fraud vitiates everything tainted by it, even the most solemn determinations of the courts of justice, is an axiom of universal application, but, like every other subject of judicial inquiry, fraud must be investigated in the proper forum and by appropriate methods of procedure." Clark v. Southern Can Co., supra. For these reasons it is manifest to us that the court below committed no error in sustaining the demurrer to the complaint, and the judgment must be affirmed. ROSS, C. J., and MCALISTER, J., concur. (28 Wyo. 91) QUINLAN v. ST. JOHN. (Supreme Court of Wyoming. Feb. 3, 1922.) 1. Appeal and error 171(3)-Record held to authorize assumption contract was part of petition. Where an order was entered by the court below on the stipulation of both parties that an escrow agreement was to be attached to plaintiff's petition and made a part thereof, and the amended petition recited that the contract was a part thereof, and both rarties in their briefs referred to provisions of the contract as if it were a part of the record, the Supreme Court was justified in treating the contract as a part of the petition in disposing of the writ of error. 2. Appeal and error 832(1)-Petition held to authorize coupling defendant's acts with other causes. Where the amended petition on which the cause was tried alleged that the acts of the defendant with other unavoidable hindrances resulted in plaintiff's inability to meet the installments on the contract as they fell due, the Supreme Court was justified in its opinion Error to District Court, Fremont County; Charles E. Winter, Judge. On motion for rehearing. Rehearing denied. For former opinion, see 201 Pac. 149. John J. Spriggs, of Lander, for plaintiff in error. V. H. Stone and John Dillon, both of Lander, for defendant in error. POTTER, C. J. The judgment of the district court complained of in this case having been affirmed (201 Pac. 149), the plaintiff in error has filed a petition for rehearing. No material point is presented that was not considered in the former opinion, but the grounds stated for rehearing are that the court erred in the conclusions and the reasons therefor stated in that opinion. The case was given a very careful and thorough consideration on the former hearing, and, although it was then submitted upon the briefs without oral argument, we reached the conclusion stated only after an exhaustive examination of the authorities upon the questions presented; and after a candid and careful consideration of the brief in support of the petition for rehearing we re main convinced that the cause was correctly decided, and are of the opinion that a rehearing could serve no useful purpose. Nor do we think it necessary to again discuss the several questions considered in the former opinion, for our views are, we think, clearly expressed therein. present brief, fails to distinguish between But counsel for plaintiff in error, in his what was held or stated in the former opinion upon the question of the right of plaintiff to recover the money paid on the theory that the defendant had rescinded the contract and what was held and stated as to the sufficiency of the amended petition to entitle the plaintiff to relief in equity against a forfeiture; and in some respects the criticisms of the statements in the former opinion by the petition for rehearing and the brief are not justified by the facts or miscon For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (203 P.) strue what was intended by the court. It statements referred to matters to be conseems proper therefore to explain the sidered upon the question of the sufficiency court's position and its understanding of the of the petition to show a right to equitable record in those particulars. relief, which, although not suggested in the brief of plaintiff in error, was intended to be and was discussed after disposing of the contentions of plaintiff in error stated in the opinion. As shown by the former opinion, the theory of the amended petition is, and the contention of counsel for plaintiff in error at the former hearing was, that the defendant, as vendor, rescinded the contract by recalling the deed from escrow upon the failure of the plaintiff, as vendee, to pay a certain installment of the agreed purchase price when it became due under the contract. And we held that the act of the vendor in so recalling the deed, in view of the provisions of the contract, did not amount to a rescission, and therefore furnished no ground for the recovery of the money paid in an action at law on the theory that because of his rescission of the contract it became the defendant's duty to refund the money paid and pay for improvements placed upon the property by the vendee. And the controlling principle upon that theory of the case under our interpretation of the contract was stated substantially as follows: That in an installment contract for the sale of real estate, where time is of the essence, or where the prompt payment of the installments is made a condition precedent, and the vendee defaults, and, without pleading sufficient facts to bring his case within recognized rules of equitable jurisprudence, sues at law to recover the money paid, he cannot recover the purchase money paid, nor for improvements placed upon the property; the court having held that in an action at law involving no equitable grounds for relief time must be considered as of the essence of the contract in question. Following a statement of the averments of the amended petition, upon which the judgment had been rendered after sustaining a demurrer to that petition and the refusal of plaintiff to further plead, and before proceeding to discuss the case upon the contentions of plaintiff in error, reference was made in the former opinion to the absence from the petition of any averment as to certain facts and as to other facts the absence of a direct or definite allegation, and some of the statements there made are criticized by the petition for rehearing and the brief in support thereof as requiring unnecessary allegations in the petition or as erroneously construing it. With the exception of what was said in that part of the opinion referring to the allegations as to the cause of plaintiff's default in payment, the statements criticized were not intended as controlling the decision of the cause upon the theory of a rescission of the contract by the vendor, as we think clearly appears from the opinion showing distinctly the points upon which the case upon that theory was decided. But for the most part such 203 P.-69 Thus, one of such statements now criticized is that there is no allegation that plaintiff had ever tendered or offered to pay the installment due on July 9, 1914. That was not stated as a ground for the decision upon either of the questions considered in the opinion, and the fact was not again referred to in the opinion. The absence of such an allegation was stated for the purpose merely of eliminating from the case any question of tender or offer to pay by showing that through the absence of averment it was not involved. It did not misstate a fact and is no ground for rehearing or complaint. Again, the plaintiff in error complains of the statement in said former opinion that the amended petition contains no allegation that the person who had signed the contract as vendee and the plaintiff are one and the same person, and it is said in the brief that such statement was an unjust criticism of the petition. That was not stated as a ground for the court's conclusion that the demurrer had been properly sustained, but, instead of being adverse to the plaintiff, the statement was decidedly in her favor, for we said in connection with it that the defendant in his brief had virtually conceded the fact that the plaintiff was the person named in the contract as vendee, and it is apparent from the opinion that the court assumed that to be the fact. It ought to be apparent to counsel that the statement was not made for the purpose of criticizing the petition but to explain the court's posi tion in assuming the plaintiff to be the vendee who had signed the contract, in the absence of any direct allegation of her relation to it other than the general averment that she had made that contract with the defendant; the court having quoted the entire contract, showing a dissimilarity between the name of the vendee mentioned therein and the name of the plaintiff in this action. [1] In discussing that matter it is said in counsel's brief that the contract was not set forth in the petition because unnecessary, but was attached to it only as an exhibit, apparently intending thereby that the contract was not a part of the petition and should not have been referred to by the court. We do not suppose that counsel intends to put the court in a false position as to that matter, though that seems to be the effect of the argument, for counsel's statement as to the relation of the contract to the petition is not entirely correct. The original petition in the case alleged as to the contract merely that on or about a certain date the plaintiff entered into a written escrow agreement with the defendant, wherein she agreed to purchase from him and he agreed to sell and convey to her the tract of land described, and that for the purpose of effecting said agreement the defendant made and executed a warranty deed for said property and deposited the same, with the agreement, in the hands of a third party, to be delivered to the plaintiff upon her completion of the payments therein provided for. It appears from the record that a demurrer to that cause of action in the petition was sustained on May 17, 1918, and plaintiff was given until June 1, 1918, within which to file an amended petition; that on May 20, 1918, an order was entered stating that on stipulation of both parties to the suit the copy of the escrow agreement referred to in plaintiff's petition is to be attached to plaintiff's petition and made a part thereof. The amended petition was filed on the same day, May 20, 1918, and in the first cause of action, which is the cause of action involved in the case here, it is alleged that the plaintiff entered into a written escrow agreement with the defendant, "a copy of which is hereto attached and marked Exhibit A, and made a part hereof"; and attached to the petition appears a copy of said contract and of the indorsements of the several payments made thereon, marked Exhibit A. And we think it obvious that said order stated to have been made upon the stipulation of the parties had reference to the amended petition and was made for the purpose of permitting the court to consider the said copy as a part of the petition. Hence, whether or not the reference to the contract in the petition as attached thereto with the statement that it is made a part thereof would ordinarily constitute said agreement or a copy thereof a part of the petition, we think it became such in this case, or at least should be so considered, because of said order made upon the stipulation of the parties. More than that, the briefs of both parties upon the original hearing referred to the contract, apparently as a part of the amended petition, and certainly without any suggestion that it was not a part of it. Plaintiff's contentions in her original brief were based upon the provisions of the contract and the fact that it did not expressly stipulate for a forfeiture of payments made before default. In that brief it was said: "The issue before this court may be briefly stated by three questions, namely: (1) In an escrow agreement for the sale of real estate, which agreement does not fix the rights nor liabilities of the parties in case of default of vendee to make payment of an installment on the day it is due, nor stipulate that payments made before default shall be forfeited to vendor, can such vendor on default of vendee to make payment of an installment on the day it is due, rescind the contract, take up the deed, and declare all payments made a forfeiture to turn all payments so received by him, less any him, or must he on rescinding the contract rejust claim for rent or other proper demands?" And the second question suggested was whether "under the conditions set forth in question No. 1": Is the vendee entitled to recover the full value of valuable improvements placed upon the premises? In the defendant's brief before us at the former hearing our attention was called to the order of May 20, 1918, making the agreement a part of the petition upon stipulation of the parties. We think it is now too late for plaintiff to contend that the contract is not a part of the petition, or to complain of the court's reference to it in the opinion disposing of the case. [2] Referring to the third contention of plaintiff on the original hearing, that defendant, by his wrongful acts, had prevented plaintiff from paying the installment in which she defaulted, the court said in the opinion that the averments of the amended petition as to the alleged wrongful acts of defendant do not charge that such acts prevented the payment, but that, "at most, it merely alleges that the act of defendant, coupled with other unavoidable hindrances, prevented the plaintiff from meeting the installment when due." Counsel for plaintiff in error in his present brief states that the opinion in that respect couples two separate allegations, the wrongful acts of the defendant and other unavoidable hindrances, into one, and that "they are alleged conjunctively by the word 'and,' and as so alleged they are independent." But whether that, if true, would make any difference or not, the court properly coupled the allegations, as shown by the amended petition itself, which is correctly quoted in two places in an earlier part of the opinion, as averring: That "through the wrongful acts of defendand thereby causing them to withhold from ant in interfering with the tenants of plaintiff plaintiff money due her from said tenants. which with other unavoidable hindrances, plaintiff was unable to meet the installments due." [3] It is also stated as a ground for rehearing that we erred in assuming that plaintiff was in possession of the premises during the life of the escrow agreement, and it is argued that plaintiff said nothing about that in her brief, and that she is not chargeable with anything that defendant's brief may have said about it. But we said that both parties in presenting the case had assumed that plaintiff was in possession. And we think that properly stated the situation |