(concurring specially.) I concur in the disposition made of this case in the opinion prepared by Mr. Chief Justice Itobinson, but I do not concur in all that is said in that opinion.
While it is well settled that equity will afford relief against a judgment obtained by means of fraud (extrinsic or collateral to the matters involved in the action in which the judgment was rendered), where the party against whom the judgment was rendered brings himself within the equitable principles justifying such relief, it is equally well settled that a party seeking such- relief must show not only fraud, but “that the judgment is unjust, that he has a meritorious cause of action or defense, that he has no adequate remedy at law, and that he is not guilty of negligence or other fault.” 15 Standard Proe. 320. And “the doctrine is fully established that a court of equity will not, on the application of the defendant in a judgment at law, who has had a fair opportunity to be heard upon a defense over which the court pronouncing the judgment had full jurisdiction, set aside the judgment or enjoin its enforcement simply on the ground that it was unjust, irregular, or erroneous, or because the equity court would, in deciding the same case, have come to a different conclusion.” Black, Judgm-. 2d ed. § 367. Where equitable relief is sought against a judgment, the fraud must be clearly stated and proved. Black, Judgm. 2d ed. § 368. And where the party seeking relief asserts'that he has become aware of certain new evidence, which he could not, with due diligence, have discovered and produced at the trial, the substance of such alleged *559evidence must be set forth in the complaint in order that the court may judge whether it is of the requisite character and weight. . Black, Judgm. 2d ed. § 386. In construing the complaint, the court will take judicial notice of its records in the case in which the judgment which is assailed was rendered. Beyer v. Investor’s Syndicate, ante, 358, 182 N. W. 934.
The original complaint in this case, in my opinion, wholly fails to state facts sufficient to justify equitable interference with the enforcement of the judgment. The averments therein are mere general conclusions that the defendant represented upon the trial of the former action that his mind had become deranged as a result of the injuries which ho had received at the hands of the plaintiff. If the averments of the original complaint were contained in affidavits forming the basis of a motion for a new trial, they would be entitled to no consideration. While the amended complaint sots forth in greater detail the matters upon which reliance is placed, I do not believe that, when construed in the light in the principles above stated, the matters set forth in the amended complaint constitute a cause of action for equitable interference with the judgment. The undisputed fact still remains that there was an altercation between the- parties to this controversy, and that, during such altercation, the defendant, Dowd, was severely beaten. That was found to be the fact in the former action, and is not denied now. In that action, it was contended by the plaintiff here that Dowd and not McGrinnity was the aggressor. In the amended complaint in this ease, it- is averred that one Furstnow, who testified that he saw the altercation from a certain drug store, could not possibly have seen it from the place where he claimed to have been stationed. And it is further averred that “at the time of the trial, this plaintiff asked his counsel to have the jury view the premises, to wit, the said drug store and surroundings, for the purpose and with the view to meeting the testimony of the said witness Henry Furstnow, and of establishing the untruth of such testimony; and that it was a physical impossibility for said witness to be where he claimed to have been and to see the trouble between the plaintiff and opponent.” An examination of the testimony of Furstnow, given upon the trial and certified to this court on appeal, shows that he was fully cross-examined as to where he stood at the time he claimed to have witnessed the altercation, and the entire transaction gone into fully. It will be noted that-, according to the *560amended complaint, the plaintiff was aware of the alleged falsity of Furstnow’s testimony at the time it was given, and asked his counsel that the jury be asked to view the premises to the end that its falsity might be demonstrated. It does not appear that plaintiff’s counsel acted on the suggestion. And for the purposes of this action it is immaterial whether counsel failed to make such request, or made it and the request was refused by the trial court. In either event it would not constitute a ground for equitable relief against the judgment. Black, Judgm. 2d ed. §§ 375, 376. If the testimony of Furstnow was so clearly and demonstrably false as it is alleged, that might and should have been submitted to the court upon the motion for a new trial. Yet, although both the plaintiff and the counsel who conducted the trial made affidavits in support of a motion for a new trial (relating to alleged newly discovered evidence), no attempt -was made to present the fact (which, according to plaintiff’s complaint in this case, he then knew and could readily have proven) that Furstnow had given false testimony upon the trial.
The amended complaint also avers that the defendant simulated mental derangement, and that subsequent to the affirmance of the judgment, by this court, the defendant has transacted business, and, among other things, at one time made computation of the cost of seed in connection with the adjustment of a hail loss, and at other times sold grain, and gave to the sheriff a list of certain property belonging to the plaintiff, with directions to levy execution thereon. In connection with these averments, it may be noted that, while it was contended in the former action that defendant’s mind and power of speech had been impaired, there was, so far as we are aware, no contention that he had become non compos mentis. The action was brought and prosecuted by plaintiff in his own name, and not by a guardian, as would have been the case if he had been “of unsound mind, or from any cause mentally incompetent.” See §§ 7401, 8886, 8887, Comp. Laws 1913.
Birdzbll and Bronson, JL, concur.