III. That the defendant at the time well knew that the hay so delivered contained only the quantity of ninety tons, to the damage of the plaintiff . dollars. [DEMAND OF JUDGMENT.] § 2792. To set aside a judgment fraudulently obtained. Form No. 637. [TITLE.] The plaintiff complains, and alleges: I. That on the ........ day of 18.., said de fendant made and delivered to one N. B. his two certain promissory notes, each for the sum of .... dollars, payable to the order of said N. B., one of which notes was due and payable on the .... on the ... day of day of bore interest at the rate of .. ... 18.. the other and afterwards, and before the day next hereinafter mentioned, both of said notes were by the said N. B. indorsed and delivered to the plaintiff, who then became and now is the legal indorsee and holder of the same, all of which still remain unpaid. .. day of .... II. That on the 18.., the plaintiff commenced an action against the defendant to recover the amount due on these notes, and procured an attachment to be issued, which on the same day was levied by the defendant E. N., sheriff of said county of on seven cows, five calves, one heifer, one cart, one buggy and harness, a quantity of poultry, one stack of hay, containing about three tons, and some hay under a shed, all of the probable value of five hundred dollars. day of 18.., judg III. That on the ..... ment was entered by the deputy clerk of this court in vacation, wherein the said A. H., S. W. L., and D. F. were named as plaintiffs, and the said J. E. as defendant, in favor of said plaintiffs, and against said defendant for the sum of ... dollars, and dollars costs. That the papers comprising the judgment-roll consist [enumerate them, as]: First. Of an affidavit, etc [describe it]; Second. A paper purporting to be signed, etc [describe it]; Third. A bill of costs, etc. [describe it]. IV. That, as plaintiff is informed, and believes to be true, on the said ... ... day of ..... .., 18.., the said A. W., pretending to act as attorney-at-law of the said H., L., and B., ........ presented to A. M., the deputy clerk of this court, the first four papers heretofore mentioned, which at the time of presenting the same were all attached together, and thereupon requested the deputy clerk to file the same, and to enter up a judgment thereon in favor of said H., L., and B., for dollars, and ... dollars costs, and to issue immediate execution therefor to the sheriff of this county, all of which the said deputy clerk then and there did, as requested by said W.; and said deputy clerk also, at the request of said W., filled up and filed away among the said papers a summons in the said action. V. That, as plaintiff is informed, and believes to be true, previous and up to the time when said papers so attached together were filed as aforesaid, no complaint had been filed, nor had any suit o etion been commenced between said parties; nor had any sun... Deen issued from said clerk's office; nor even the form of one filled up in said action, all of which facts are ore fully shown by the affidavit of said A. M., hereto annexed, marked "Exhibit A," and made a part of this complaint. VI. That said P. E., sheriff of this county, received the said execution issued on said judgment on the day of 18.., and on the ... ... day of said month levied the same on the property above specified and described, and which levy is prior to said plaintiff's attachment. VII. The plaintiff further alleges that the said proceedings and circumstances under which said judgment was entered up by the said deputy clerk render the same void in law, the said clerk having no power or jurisdiction to enter such judgment under the circumstances, and in the manner before stated, and that the same is fraudulent as against the plaintiff and tends to his great and irreparable injury; and that the said fraudulent and void judgment was consummated under the advice and by the connivance of said defendant W., who was employed, as plaintiff is informed and believes, by said E., and confederated with him and said H., L., and B., to procure to be entered upon the records of said court said false, covinous and fraudulent judgment. VIII. That the defendant E. is insolvent, and has no visible property except the aforesaid, subject to execution. IX. That defendant E., as such sheriff as aforesaid, has, as plaintiff is informed and believes, advertised said property for Vol. II - 43 sale under the execution issued upon said fraudulent and void judgment, to be sold on the ..... inst., at ........ day of ... .... o'clock, a. m., and if allowed to proceed with said sale, the plaintiff will be prejudiced to the amount of said property, and will probably lose his said debt, and it will produce to him a great and irreparable injury. Wherefore the plaintiff prays: 1. For a decree of this court, that the judgment sc entered as aforesaid, and the execution thereon issued, may be declared void, as against the plaintiff and the creditors of the said E., and that it, together with the said writ of execution issued thereon may be wholly vacated and annulled. 2. That the said property seized and taken under said execution, and the proceeds of the sale thereof, may be subjected to the writ of attachment issued as aforesaid in the action of the plaintiff against said defendant E., and for such further or other relief as to this court may seem meet in the premises, and for costs of suit against defendants. 3. And in the meantime that an order of injunction may issue out of this court, enjoining and restraining the defendants, their attorneys, agents, and servants, and particularly the said E., as such sheriff, from selling the said property under said execution, and from in any way disposing of or intermeddling with said property, or in any way selling or disposing of said judgment so entered in favor of said H., L., and B., against said E. [Annex copy of affidavit, marked 'Exhibit A."] 166 § 2793. Fraud and deception. If the plaintiff relies on fraud and deception practiced on the court in the matter of evidence, the complaint must show that he was thereby defrauded of his opportunity to defend, and that his defense would otherwise have been effectual.167 A party must show that he has ex 166 Form of complaint from Crane v. Hirschfelder, 17 Cal. 582. A party is not confined to his remedy by statute, but may resort to a court of equity for relief against a judgment obtained by fraud or surprise. Carpentier v. Hart, 5 Cal. 407. For a complaint to set aside a judgment on the ground of newly-discovered evidence, and for fraud, see Munn v. Worrall, 16 Barb. 221; Hamel v. Grimm, 10 Abb. Pr. 150. To restrain a corporation from enforcing a judgment, on the ground that it has ceased to be a corporation, see Sutherland v. The Lagro, etc., Co., 19 Ind. 192. 167 Riddle v. Baker, 13 Cal. 295. Fraud upon court.-A complaint in an action by a creditor of the estate of a decedent to set aside hausted all proper diligence to defend in the suit in which judgment was rendered. 2794. Fraud, how alleged. Where a creditor files a bill to cancel and set aside a judgment rendered against his debtor, on the ground that it is fraudulent, it is not sufficient to aver in general terms that said judgment or conveyance was fraudulent; the facts and circumstances constituting the alleged fraud must be set forth.168 And if he wishes in addition to reach the property of the debtor, and have it applied in satisfaction of his demand, the complaint must aver, either that the plaintiff has acquired a lien on the property he seeks to reach, or that he has recovered a judgment, upon which an execution has been issued and returned, and no property found.169 Where plaintiff alleged that he was satisfied that defendant secured certain property through fraud, the issue tendered was immaterial in `not presenting a point upon which the case could be decided upon its merits.170 2795. Judgment by confession. Where a judgment by confession is attacked by a creditor as fraudulent against him, on the ground that the object of the debtor and the judgment creditor was to assist the debtor in forcing a compromise with his other creditors, rather than to enforce the judgment, the complaint must plead this ground of objection to the judgment. an order setting apart a probate homestead to the defendant as the widow of a deceased, which charges a willful suppression of a material truth and the suggestion of a falsehood by the defendant, with intent to deceive and mislead the court, to the prejudice of the creditors of the estate, and avers that such suppression and suggestion had the intended effect, to the injury of the plaintiff, who was one of such creditors, states facts constituting fraud, of which the plaintiff is entitled to complain. Wickersham v. Comerford, 96 Cal. 433. 168 Castle v. Bader, 23 Cal. 75; see, also, Snow v. Halstead, 1 id. 359. 169 Id. 170 Snow v. Halstead, 1 Cal. 361. Setting aside judgment - Fraud and mistake of attorney. A complaint in an equitable action to set aside a judgment and to obtain a new trial, on the ground that by the negligence, fraud and mistake of plaintiff's attorney, plaintiff had lost his right to appeal from such judgment, which makes no charge of fraud against the defendant, nor of collusion between defendant and plaintiff's attorney, nor that the plaintiff did not have a fair and impartial trial, does not state facts sufficient to constitute a cause of action. Davis v. Chalfont, 81 Cal. 627. A general averment that the intent was to hinder, delay, and defraud will not put the adverse party on his defense.171 A judgment by confession, where the court has jurisdiction of the subject-matter and the parties, however irregular and erroneous it may be, can not be called in question in a collateral proceeding, if it was entered in open court, and regularly signed by the judge under the existing practice.172 It may be attacked for fraud by creditors of the judgment debtor who were defrauded. thereby, and that in some direct proceeding, before the sale of the property under it to innocent parties.173 § 2796. Judgment by default. In a suit in equity, to set aside a judgment by default on a return by the sheriff of personal service, on the ground that defendant in fact was not so served, and never had any notice of the proceedings, and that he had a valid defense to the action, the allegations relative to this defense showed that it was based upon an executory agreement, by the terms of which certain things were to be done by plaintiff, and in consideration thereof he was to be released from the debt for which the action was brought, it was held that the allegations are insufficient in this, that they do not state that any of these things were performed by him, or that he ever offered, or was or has been at any time ready or willing, to perform the same.174 § 2797. Judgment on stipulation. Where a judgment was entered upon a stipulation of the attorneys in the action, and the defendants in the action subsequently brought a suit to annul the judgment for fraud and collusion, the facts and circumstances, and the merits of their defenses in the former suit, are a part of the subsequent action, and may be shown.1 175 § 2798. Legal remedy must be exhausted. To obtain the aid of chancery for relief against a fraudulent judgment, it must be shown that the plaintiff has exhausted all proper dili 171 Meeker v. Harris, 19 Cal. 278; 79 Am. Dec. 215. 172 Cloud v. El Dorado Co., 12 Cal. 133; 73 Am. Dec. 526; Arrington v. Sherry, 5 Cal. 513. 173 Miller v. Earle, 24 N. Y. 111; see Wilcoxen v. Burton, 27 Cal. 229; 87 Am. Dec. 66; cited in Lee v. Figg, 37 Cal. 328; 99 Am. Dec. 271. 174 Gibbons v. Scott, 15 Cal. 284. 175 Preston v. Hill, 38 Cal. 686. |