I cannot concur in the opinion of Mr. Justice POTTER.
The award was for and during total disability. Defendant Pneff was not totally disabled during *Page 122 the 13 months he worked for plaintiff and received $885.04 for his services. This, of course, he knew, and it was a fraud on his part and an imposition on the court to take judgment on the certificate for total disability during the 13 months he worked and suffered no such disability.
"Fraud practiced in the very matter of obtaining the judgment is regarded as perpetrated upon the court, as well as upon the injured party, and will warrant a court of equity in enjoining the judgment. This may, for example, consist in deceit and imposition practiced upon the court as a means of obtaining a judgment which otherwise would not be rendered." 34 C. J. p. 473.
The law affords the employer no opportunity to be heard in the circuit court upon filing the certificate and entry of judgment, and, therefore, the doctrines of waiver and estoppel have no application. Equity will not countenance the fraud and imposition here practiced by defendant Pneff, nor will it subject industry to such an arrant mulct.
It is true that when the employee went back to work the employer should have asked the department of labor and industry to stop compensation, but the failure to do so offers no excuse to the employee to perpetrate fraud and imposition.
If defendant Pneff, within 10 days, files a remittitur of $885.04 in the circuit court and has the sum certified to the sheriff in reduction of the amount of the execution, then the judgment and execution for the remaining amount may stand, otherwise the execution will stand recalled and the judgment permanently stayed.
Plaintiff herein will recover costs.
McDONALD, C.J., and CLARK, SHARPE, NORTH, and BUTZEL, JJ., concurred with WIEST, J. *Page 123