The bill of complaint in this case shows that the respondent, Mary Belle Bolden, alias Hughley, "filed a petition against your complainant in the circuit court of Jefferson county, Ala., claiming compensation as a dependent wife of the said John Hughley, deceased," and that the trial court found that she was his wife and awarded compensation accordingly.
The fraud upon which complainant relies in invoking the jurisdiction of equity for the impeachment and cancellation of the judgment at law, is thus stated in the bill:
"(6) That shortly prior to the filing of this bill and more than six months after the entry of the aforesaid order or decree, your complainant discovered that the aforesaid order or decree had been procured by fraud and misrepresentation on the part of said Mary Belle Bolden, alias, * * * which said fraud or misrepresentation consisted in this: That the said Mary Belle Bolden, alias, * * * and a witness, Elizabeth Caster, who testified in said cause on behalf of the plaintiff, testified in open court on the trial of the aforesaid cause that the said Mary Belle Bolden, alias, * * * was legally married to the, said John Hughley, deceased, about six years prior to his death, and that at the time of the death of the said John Hughley, deceased, the said Mary Belle Bolden, alias, * * * was living with him as his wife. And your complainant further avers that the said testimony of Mary Belle Bolden, alias, * * * and the said Elizabeth Caster, was false, and that the said Mary Belle Bolden, alias, * * * was never married to the said John Hughley, deceased, and was not living with him as his wife at the time of his death."
No other fraud is charged or suggested.
Though not material to the conclusions to be hereafter stated, I call attention, in passing, to the fact that the bill does not charge that the testimony complained of was perjured testimony — that is, that it was knowingly and corruptly false. Green v. State, 41 Ala. 419; State v. Lea, 3 Ala. 602.
The majority opinion concedes that the fraud expressly charged in the bill, the use of false, or even of perjured, testimony, is not a ground for equitable relief against the judgment — a principle of practically universal recognition. United States v. Throckmorton, 98 U.S. 61, 25 L. Ed. 93; De Sota, etc., Co. v. Hill, 194 Ala. 537, 69 So. 948.
But, disregarding the actual (and concededly insufficient) charge of fraud as made by the bill, the majority opinion assumes that the petition or complaint in the law case was both false and fraudulent; and concludes that, in thus invoking the jurisdiction of the law court by claiming the right to recover as the wife of the decedent, she was guilty of a fraud upon the defendant, which was extrinsic and collateral to the judgment — fraud, in fact, in its very procurement or concoction. This, it seems clear to me, is a complete renunciation of the long-established and well-understood meaning of those terms, and a total departure from the settled doctrine which has heretofore governed courts of equity in reviewing judgments at law on the ground of fraud.
Fraud which is extrinsic and collateral to the judgment means, and can only mean, fraud which is not involved in the truth or falsity of the claim presented for adjudication. In Norwood v. L. N. R. R. Co., 149 Ala. 151, 161, 42 So. 683, this court quoted with approval the language of Judge Freeman:
"It is a general rule of equity jurisprudence that a court of equity will not undertake to try and determine the precise question which has been determined at law; * * * that, even in a case of alleged fraud, equity cannot assume jurisdiction where the fraud is not extrinsic and can only be ascertained bya retrial of the issue which has already been tried anddetermined." (Italics supplied.)
The italicized clause is a perfect epitome of the doctrine.
In De Sota, etc., Co. v. Hill, 194 Ala. 537. 546, 69 So. 948, 950, the availability of fraud by false pleading was directly before the court, and we said:
"It is impossible, as it seems to us, to make any logical distinction between knowingly false statements, made to a litigant by an adversary party respecting the merits of his case, by parol out of court, and by written pleadings and answers to interrogatories filed in court. If he may trustingly accept the one as true, he may, with equal assurance, accept the other. And since a fraudulent purpose to forestall further inquiry and lull into inaction may as well be imputed to the one as to the other, the result would be the insufferable evil of reviewing in chancery courts almost every judgment that has been rendered in adversary suits, than which it is infinitely better that occasional unjust judgments should stand unrebuked, and their wrongful results go unredressed."
That case is direct authority for the proposition that the mere making of false allegations in a complaint, though they are vital to the case and constitute the very cause of action, is not a fraud extrinsic to the judgment; for there the plaintiff alleged that he was only 13 years of age, and his cause of action was based solely upon the defendant's unlawful employment of him — a minor under fourteen — in its mines. Relief against such fraud (so-called) was denied in that case.
In Fulton v. Eggler, 200 Ala. 269, 6 So. 35, the bill was filed by a distributee against *Page 337 the administrator of the estate and a creditor who had recovered a judgment against the administrator, on a promissory note given by the decedent, for relief against the judgment on the ground of fraud. The bill averred:
"That the aforesaid note was in fact a forgery, and was without consideration, as L. A. Fulton, the plaintiff, well knew at the time she reduced the same to judgment."
The court said, per McClellan, J.:
"It is manifest, too plain to even admit of question, that the bill's allegations do not disclose any character or quality of fraud that measures up to the standard established in this jurisdiction, and defined in the following, among others, of our decisions: De Sota, etc., Co. v. Hill, 194 Ala. 537,69 So. 948; Hogan v. Scott, 186 Ala. 310, 65 So. 209; Hardeman v. Donaghey, 170 Ala. 362, 54 So. 172."
Anderson, C. J., and Sayre and Gardner, JJ., concurred. In that case, the plaintiff in the law case (as shown by the bill) declared upon a forged and fraudulent instrument. He invoked the jurisdiction of the court upon a simulated and utterly nonexistent cause of action, and induced the court to render the judgment in his favor by exhibiting in evidence the forged note. The bill showed an outrageous fraud, both as to pleading and as to proof, but this court said it was "too plain to admit of question" that the fraud was intrinsic and not available for impeachment of the judgment.
In the very recent case of Sloss-Sheffield, etc., Co. v. Lang, 213 Ala. 412, 104 So. 770, the bill of complaint showed that the respondent had recovered a judgment at law against the complainant, under the Workmen's Compensation Act; that he had filed a petition claiming an allowance for an injury to his eye, arising out of and in the course of his employment; that the claim was false and simulated; and that the judgment was obtained by false testimony that the eye had been injured as alleged, when in fact the injured or defective eye had no relation whatever to his employment.
It is interesting to note the allegations of fraud in the amended bill — these among others:
"The said fraud and misrepresentation of said respondent was in substance that said respondent being blind in one eye, andknowing this and also knowing that complainant's agents, servants and employés were unaware of this fact, conceive ascheme to fraudulently procure money from said company. In and as a part of said fraudulent scheme, he claimed to have received his said injury under such circumstances that your petitioner would be unable to secure any witnesses either to affirm or deny the statements made by respondents, and consequently the complainant, having no knowledge of the facts, would be unable to offer any evidence to contradict or deny respondent's claim. * * * The respondent fraudulently represented, both in making claim against the company and at the trial, that he was working in a heading in the said mine breaking rock with a hammer, when a small piece of rock flew off and struck him in the eye, causing the injury which later resulted in the loss of the sight thereof. In the prosecution of his alleged claim and at the trial, he fraudulently led the Sloss-Sheffield Steel Iron Company, his attorneys, and thiscourt to believe that the injury was received (as recited). The said fraud and misrepresentation of the respondent herein consisted not only in his false swearing as a witness in his own behalf at the said trial, but also, and more particularly,in the conception, instigation, and prosecution of this said action, which * * * amounts to a scheme to defraud, in that the facts which have since been ascertained show that the sight in the said eye was lost as a result of a blow received by said respondent while he was engaged in a fight before. * * * he began work for your petitioner." (Italics supplied.)
Those are the facts shown by the record on file, though they do not appear from the printed report. In that case this court said, per Anderson, C. J.:
"The bill * * * when boiled down to a final analysis, is based upon the sole fact that respondent testified falsely upon the trial as to the cause and extent of his injury, and that complainant has since discovered new evidence contradictory of the respondent's evidence as to this fact; in other words, that the judgment was procured on false or perjured testimony. Whatever the rule may be in other jurisdictions, this court has firmly adhered to the one that a bill in equity will not lie to cancel a judgment procured on false testimony, unmixed with accident or fraud on the part of the successful party against the other which prevented him from making his defense. De Sota Co. v. Hill, 188 Ala. 667, 65 So. 988; Hardeman v. Donaghey,170 Ala. 362, 54 So. 172, and cases there cited."
The concurring justices were Thomas, Bouldin, and the present writer.
Mutatis mutandis, every word of the foregoing quotation is applicable to the instant case. It must be readily apparent to the impartial inquirer, that in each of the three cases above reviewed, exactly as asserted in the instant case, there was an invocation of the jurisdiction of the trial court by the filing of a petition or complaint presenting a falsely simulated and spurious claim, in which the falsehood asserted went to the very cause of action, rendering it in fact nonexistent. It is true, of course, that these several causes of action differ from the cause of action in the instant case, as they do each from the other, but the difference is a superficial difference of fact, merely. I do not see how they can be distinguished in principle, and my brethren of the majority have made no attempt to do so.
The leading, and certainly the most authoritative case, on this subject is United States v. Throckmorton, 98 U.S. 61,25 L. Ed. 93, often cited in the opinions of this court. In that case a bill was filed to cancel an order *Page 338 of a board of commissioners of private land claims confirming a title in the respondent's grantor, and also a decree of the district court affirming that decree. The court said (per Miller, J).
"The specific act of fraud which is mainly relied on to support the bill is, that after Richardson had filed his petition before the board of commissioners, with a statement of his claim and the documentary evidence of its validity, March 16, 1852, he became satisfied that he had no sufficient evidence of an actual grant or concession to sustain his claim, and with a view to supply this defect, he made a visit to Mexico, and obtained from Micheltorena, former political chief of California, his signature, * * * to a grant which was falsely and fraudulently antedated, so as to impose on the court the belief that it was made at a time when Micheltorena had power to make such grants in California; and it is alleged that in support of this simulated and false document he also procured and filed therewith the depositions of perjured witnesses. (After stating the general rule and reviewing authorities.) * * * In all these cases, and many others which have been examined, relief has been granted, on the ground that, by some fraud practiced directly upon the party seeking relief against the judgment or decree, that party has been prevented from presenting all of his case to the court. On the other hand, the doctrine is equally well settled that a court will not set aside a judgment because it was founded on a fraudulent instrument, or perjured evidence, or for any matterwhich was actually presented and considered in the judgment assailed. * * * We think these decisions establish the doctrine on which we decide the present case; namely, that the acts for which a court of equity will on account of fraud set aside or annul a judgment or decree, between the same parties, rendered by a court of competent jurisdiction, have relation to frauds,extrinsic or collateral, to the matter tried by the first court, and not to a fraud in the matter on which the decree was rendered." (Italics supplied.)
As to what frauds are extrinsic to the matter tried and adjudicated, so as to fall within the rule of review, we are not without clear and precise definition at the hands of this court, oftentimes repeated. The fraud "must be fraud in the rendition or procurement of the judgment itself." Noble v. Moses, 74 Ala. 616, approving Story's definition that "it must have been practiced in the very act of obtaining the judgment * * * fraud in its concoction"; and Freeman's, that fraud "not connected with the proceedings by which it was obtained, is deemed insufficient." In Watts v. Frazer, 80 Ala. 186, 188, these definitions were again approved.
In Rittenberry v. Wharton, 176 Ala. 390, 401, 58 So. 293,297, it was said, per Dowdell, C. J.:
"If a cause of action is vitiated by fraud, this is a defense which ought to be interposed to the granting of the judgment or decree, and, unless the interposition of this defense is prevented by fraud, it cannot be asserted against the judgment; for judgments are impeachable for those frauds only which areextrinsic to the merits of the case, and by which the court has been imposed upon, or misled into a false judgment. The fraud must be practiced in the rendition or procurement of the * * * decree." (Italics supplied.)
In Hardeman v. Donaghey, 170 Ala. 362, 368, 369, 54 So. 172,174, many of our previous decisions were carefully reviewed, and the following definition — too clear to be misunderstood — was elaborated by Chief Justice Anderson:
"There seems to be a well-defined distinction between fraud practiced in the rendition and procurement of a judgment, 'in the very act of obtaining the judgment or in its concoction,' and in fraud antecedent to the judgment, such as would have constituted a good defense to the rendition of the judgment, but not connected with the proceedings by which it was obtained. In other words, to come within the former rule (of extrinsic fraud) the fraud must relate to the proceedings, such as falsifying the entries, improperly influencing court, jury, witnesses, etc., such misconduct as has some direct bearing on the rendition of the judgment and not triable or subject ofcontroversy under the issues involved upon the trial and thetruth or falsity of which was not in issue."
In Sims v. Riggins, 201 Ala. 99, 105, 77 So. 393, 399, the De Sota Case (194 Ala. 537, 69 So. 948, Id., 188 Ala. 667,65 So. 988), was reviewed in an opinion by Thomas, J., and the rule was approved that fraud, to be vitiating, "must be in the very act of obtaining the judgment, or in its concoction, and hence must be extrinsic or collateral to the matter which was tried and determined by the judgment in question."
The De Sota Case was again reviewed in Hooper v. Peters Land Co., 210 Ala. 346, 348, 98 So. 6, 8, in an opinion by Sayre, J., wherein its principles were restated and approved, among others, that:
"It is only fraud in the management of the action orproceeding, and by which the complainant was prevented from properly presenting and establishing his cause of action or defense, which may be a ground for relief in equity." (Italics supplied.)
It was again cited as authority by the same learned justice in Danne v. Stroecker, 210 Ala. 483, 485, 98 So. 479, and the rule recognized that the fraud must be "in the management of the proceeding in the probate court — to employ the language of the decisions — in the concoction of the decree of sale."
In the Throckmorton Case, supra, Mr. Justice Miller made clear the meaning of extrinsic fraud, and enumerated the cases within its scope as follows:
"Where the unsuccessful party has been prevented from exhibiting fully his case, by fraud or deception practiced on him by his opponent, as by keeping him away from court, a false *Page 339 promise of a compromise; or where the defendant never had knowledge of the suit, being kept in ignorance by the acts of the plaintiff; or where an attorney fraudulently or without authority assumes to represent a party and connives at his defeat; or where the attorney regularly employed corruptly sells out his client's interest to the other side — these, andsimilar cases which show that there has never been a real contest in the trial or hearing of the case." (Italics supplied.)
In view of these clear, consistent, and authoritative definitions of extrinsic fraud, I do not see how the majority of the court can now hold, as they expressly do, that the mere filing of a complaint, declaring upon a false cause of action is a fraud extrinsic to the judgment — a fraud in the very act of obtaining the judgment, or of its concoction. "Concocting" a cause of action, that is conceiving it, and planning to establish it in court, is a very different thing from concocting a judgment, and herein lies the fallacy of this decision. It must be perfectly obvious that, if merely presenting a false cause of action to the law court by filing a complaint is to be regarded as an extrinsic fraud not involved in the issue to be tried, the whole doctrine of United States v. Throckmorton, and of our own cases which have followed it, is swept away; for how can any false cause of action ever reach the trial stage on false testimony unless it has first been presented to the court by a complaint invoking its jurisdiction?
Certainly this is a new theory of extrinsic fraud, which removes all restrictions from the revisory power of equity courts, and is in the very teeth of our decisions, De Sota, etc., Co., v. Hill, supra, Fulton v. Eggler, supra, and Sloss-Sheffield, etc., Co. v. Lang, supra, all of which I have fully reviewed above, showing in each case an invocation of jurisdiction by a false complaint to establish a fraudulent cause of action.
Fifty years ago, Chief Justice Brickell, speaking for this court on this identical subject, said:
"The numerous adjudications on this point are marked by a harmony of opinion not always found on legal questions; and the result is thus stated by a writer of learning and discrimination: 'The actual adjudication of any question is in fact final, under all circumstances unless corrected by some appellate tribunal and is never subject to re-examination in any other than an appellate court, upon an issue of law or fact; nor upon the sole ground, that the former decision is contrary to equity or good conscience. It is always a condition precedent to the proper action of a court of equity, in interfering with a judgment or decree not before it upon appeal, that facts be disclosed, establishing that the matter now in the form of an adjudication is in truth, without any fault of the party seeking to avoid its effect, a determination in which he could not present his cause of action, or his ground of defense, as the case may be, to the consideration of the court.' Freeman on Judgments, § 485. To this rule, this court has strictly, inflexibly, and uniformly adhered." Waring v. Lewis, 53 Ala. 616, 624.
In Pico v. Cohn, 91 Cal. 129, 134, 25 P. 970, 971, 13 L R. A. 336, 25 Am. St. Rep. 159, 163, the court explains the meaning of "extrinsic or collateral fraud," viz., that it is in those cases where —
"the unsuccessful party is really prevented, by the fraudulent contrivance of his adversary, from having a trial; but when he has a trial, he must be prepared to meet and expose perjury then and there. He knows that a false claim or defense can be supported in no other way; that the very object of the trial is, if possible, to ascertain the truth from the conflict of the evidence, and that, necessarily, the truth or falsity of the testimony must be determined in deciding the issue. The trial is his opportunity for making the truth appear. If, unfortunately, he fails, being overborne by perjured testimony, and if he likewise fails to show the injustice that has been done him on motion for a new trial, and the judgment is affirmed on appeal, he is without remedy."
Further elucidation seems unnecessary, but I shall nevertheless add Mr. Pomeroy's contribution because of the great value and authority of his conclusions. He says:
"We have seen that the fraud which warrants equity in interfering with such a solemn thing as a judgment must be fraud in obtaining the judgment and must be such as preventsthe losing party from having an adversary trial of the issue. Perjury is a fraud in obtaining the judgment, but it does notprevent an adversary trial. The losing party is before the court and is well able to make his defense. His opponent does nothing to prevent it." 5 Pom. Eq. Jur. 4685, § 2077 (section 656).
And he says, generally:
"The ground for the equitable jurisdiction to interfere is, therefore, something dehors the issues, something arising out of or connected with the trial itself of the legal action in the court of law." (Italics supplied.) Id., 4671, 2068 (section 647).
As to what is an "adversary trial," I do not see how there can be any difference of opinion. Certainly it is nothing more nor less than a trial in which there are adversary parties before the court, who have had full opportunity to present and establish their opposing contentions, if any they have. Greene v. Greene, 2 Gray 361, 61 Am. Dec. 454; Price v. Cohn, supra; Emerson v. Udall, 13 Vt. 477, 483, 37 Am. Dec. 604.
In Greene v. Greene, supra, the court, holding that fraud is sometimes admissible for the impeachment of judgments, said, per Shaw, C. J.:
"But where the same matter has been actually tried, or so inissue that it might have been tried, it is not again admissible." (Italics supplied.)
In such a case, it is wholly immaterial whether a party has relied upon the weakness *Page 340 of his adversary's evidence or has offered contradictory evidence of his own; it is an adversary trial none the less.
The reasons for this restriction upon the revisory power of courts of equity have often been forcibly stated.
In a note to Pico v. Cohn, 25 Am. St. Rep. 159, 168, Judge Freeman says:
"If a controversy may be reopened by tendering an issue as to such perjury or subornation of perjury, it would be continued indefinitely, or until one or both of the parties had exhausted their means of continuing it; and should the original judgment be reopened on the ground of alleged perjury, the decree reopening it ought in turn, upon the same principle, be subject to attack upon the same ground."
In United States v. Throckmorton, supra, it was observed that:
"The mischief of retrying every case in which the judgment or decree rendered on false testimony, given by perjured witnesses, or on contracts or documents whose genuineness or validity was in issue, and which are afterwards ascertained to be forged or fraudulent, would be greater, by reason of the endless nature of the strife, than any compensation arising from doing justice in individual cases."
In Pico v. Cohn, supra, Chief Justice Beatty said:
"Endless litigation, in which nothing was ever finally determined, would be worse than occasional miscarriages of justice; and so the rule is, that a final judgment cannot be annulled merely because it can be shown to have been based on perjured testimony; for if this could be done once, it could be done again and again ad infinitum."
As weighty and sufficient as these reasons are, I think there is another, weightier still, viz., that this arrogation of revisory power over determinations of fact, as expressed in judgments at law, is in effect, a denial of the right to trial by jury, and a confusion of the equity and common-law jurisdictions. This court has given a mandate to the equity court below to exercise its jurisdiction by investigating the very issue presented to and determined by the law court. It will hear the witnesses, consider their credibility, and readjudge a legal issue of fact wholly outside of its own jurisdiction.
It is hardly necessary to observe that our recent case of Keenum v. Dodson, 212 Ala. 146, 102 So. 230, involving as it did an ex parte petition for allotment of homestead, and a decree thereon without adversary parties or trial, is not in conflict with any of the principles and authorities stated and cited above. On the contrary, it is in perfect harmony with the basic principle which I have elaborated so fully.
The necessary effect of the majority opinion and decision is to strike down the whole doctrine restricting equity jurisdiction in these cases, and to overrule, by necessary implication, the cases of De Sota, etc., Co. v. Hill, Fulton v. Eggler, and Sloss-Sheffield Co. v. Lang, supra, to say nothing of the numerous cases in which the principle of those cases has been carefully stated by this court.
The doctrine of stare decisis, though not without its limitations, is the only thing that gives form, and consistency, and stability to the body of the law. Its structural foundations, at least, ought not to be changed except for the weightiest reasons. The reasons underlying the rule restricting the revisory power of equity courts over judgments at law are as potent to-day as when the rule was first announced. I am convinced that both the legal profession and the general public would prefer to have certainty and stability in the law rather than to have a succession of changes, dependent upon the shifting views of the judges who follow each other on our courts.
I feel that, in the effort to remedy an alleged wrong in this particular case, my brethren of the majority have abandoned a principle, long and wisely established, and have forgotten the rule of stare decisis in its most wholesome and useful sphere of action.
For the reasons stated, I must respectfully dissent from the opinion and decision of the majority.
GARDNER and THOMAS, JJ., concur in the dissenting opinion above.