I dissent, and adhere to the opinion delivered in Department affirming the judgment. [87 P. 24.] I think that the case clearly comes within the rule that equity cannot be invoked where there is a remedy at law. Appellants had an ample remedy for their alleged grievance by motion under section 473 of the Code of Civil Procedure. They availed themselves of that remedy and were defeated; and they are now seeking to try all over again the matter there litigated. If their statements are true, they were the victims of the "surprise" which is made one of the grounds for relief in section 473; and it makes no difference that the surprise was the result of alleged fraud. Moreover, if the decision on the motion were no bar to the present action because of fraud involved, then, in my opinion, there is no *Page 567 sufficient averment in the complaint of facts constituting fraud. The mere averment that plaintiffs "procured" defendants' attorney to make the stipulation, etc., is insufficient; the procurement may have been by proper and justifiable means.
The following is the opinion in Department referred to in the dissenting opinion: —