delivered the opinion of the Court:
This was. a bill in chancery, filed in the circuit court of Saline county, by appellee against the appellant and the sheriff of that county, to enjoin the collection of a judgment and for a new trial in an action at law.
Appellant demurred to the bill, for the alleged reason that it is insufficient in law. The court overruled the demurrer, and, the appellant refusing to further answer, decreed in accordance with the prayer of the bill, enjoining the collection of the judgment and granting a new trial in the cause.
The only question presented for our consideration is, did the court err in overruling the demurrer and rendering this decree ?
The rule is well settled that “equity will grant relief against a judgment which is against conscience, or the justice of which can be impeached by facts, or on grounds of which the party could not avail himself at law, or of which he was prevented from availing himself by fraud, accident, mistake, or the act of the opposite party, without any negligence or fraud on his own part.” Hilliard on HeW Trials, 451, sec. 3; Freeman on Judgments, 409, sec. 486.
It is alleged in the bill, in substance, that appellant recovered a judgment against appellee on a note which had been paid some twelve years prior to the commencement of the suit in which the judgment was obtained ; that appellant was, at the time, cognizant of the payment, but falsely swore on the trial that the note had not been paid; that appellee was only surety on the note, and knew nothing about the payment, it having been made by his principal, who, soon after making the payment, and without communicating the fact to appellee, removed from and has ever since resided out of the country ; that appellee applied for a continuance, to procure the testimony of his principal; that, failing in this, he applied to the only persons that he had reason to suppose, on account of their intimacy with the parties, knew anything about the payment, and that they were then too sick to communicate any information in regard to the pa)rment, and that since the adjournment of the term of court at which the judgment was obtained he has discovered witnesses, whose names and residences are given, by whom he can prove the payment of the note, as before stated. This, by the demurrer, is admitted to be true. The case is strictly within the rule which we have quoted. The judgment was fraudulent, and appellee is not chargeable with negligence in ascertaining and interposing his defense.
The decree of the circuit court was justified by the averments in the bill, and it is therefore affirmed.
Decree affirmed.