Dunlap v. Steere

Beatty, C. J., concurring.

I concur. It appears that Dunlap was, without any fault of his own, deprived of the opportunity of interposing a perfect defense to the action of Steere v. Dunlap, and it is alleged in the complaint herein, and found by the court, not only that the allegations of the complaint'in the former action were untrue, but that Steere at the time knew they were false. The evidence is sufficient to sustain this finding, at least so far as the complaint in the former action counted upon a title by prescription; but there is nothing to show that Steere in fact knew that his tax title *350was void, though such knowledge is by the law imputed to him. The case, then, presents these features: Steere sues Dunlap upon a claim which he knows to be false. He obtains an order for publication of summons, based upon the two grounds that Dunlap has departed from the state, and cannot, after due diligence, be found within the state. His affidavit is in itself sufficient to justify a finding that these grounds exist; and a judgment entered upon Dunlap’s default, after publication of summons, is not void, and cannot be set aside upon motion, unless the motion is made within a year. (Code Civ. Proc., sec. 473.) Can it, then, be annulled by suit in equity after the year? I think it clear, on principle, that in a case where no rights of innocent third parties are involved, a judgment so obtained ought to be set aside, upon the ground that it was fraudulently obtained; the fraud consisting in taking a default judgment upon a claim made in bad faith against a defendant, who, without any fault on his part, is prevented from interposing a perfect defense. The findings of the superior court, therefore, which are supported by the evidence, are themselves sufficient to support the judgment; and the order denying defendant’s motion for a new trial should be affirmed.