Bjella, Arley R.

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North Dakota Law Review Volume 17 Number 6 Article 4 1940 Vacation of Judgements - Extrinsic and Intrinsic Fraud Arley R. Bjella Follow this and additional works at: https://commons.und.edu/ndlr  Part of the Law Commons Recommended Citation Bjella, Arley R. (1940) "Vacation of Judgements - Extrinsic and Intrinsic Fraud," North Dakota Law Review: Vol. 17 : No. 6 , Article 4. Available at: https://commons.und.edu/ndlr/vol17/iss6/4 This Note is brought to you for free and open access by the School of Law at UND Scholarly Commons. It has been accepted for inclusion in North Dakota Law Review by an authorized editor of UND Scholarly Commons. For more information, please contact und.commons@library.und.edu. BAR BRIEFS(Continued from First Page)in behalf of the two bills I have mentioned, if the various stateorganizations and groups will inform themselves with respectthereto, and lend their active and vigorous assistance. Thepeople and not the politicians will save this country from totali-tarianism if it can be saved.I therefore urge that every lawyer write our Senators andCongressmen asking them to support this worthy legislation andthat you interest others to do the same.H. G. NILLES,President.NATIONAL CONFERENCE OF JUDICIAL COUNCILSWashington, D. C.-Impetus to the work of the National Con-ference of Judicial Councils was given at a luncheon here, heldin connection with the meeting of the American Law Institute, atwhich members of the conference heard reports on what Ameri-can lawyers are doing during the emergency and how their Eng-lish brethren are carrying on under war conditions.Sir Wilfred A. Greene, Master of the Rolls of England, andDr. Arthur L. Goodhart, professor of Jurisprudence at OxfordUniversity, gave off-the-record talks on conditions there. Otherspeakers were Jacob M. Lashly, president of the American BarAssociation; Solicitor General Francis Biddle; and Judge EdwardR. Finch, chairman of the conference. Arthur T. Vanderbilt,chairman of the conference Executive Committee, presided.In attendance at the luncheon were Attorney General Jack-son; justices of the United States Supreme Court; senior judgesof the federal circuit court of appeals from several districts;judges of the United States Court of Appeals of the District ofColumbia; chief justices of state supreme courts; law schooldeans, and others.VACATION OF JUDGMENTS - EXTRINSIC ANDINTRINSIC FRAUDThe principle that there has to be an end to litigation andthat when a party has had his day in court the judgment thusrendered shall be final was first enunciated in 1702 by the LordKeeper in the High Court of Chancery in the case of Tovey v.Young, 2 Vern. 437, S. C., 24 Eng. Rep. R. 93 (1702).In the vacating of judgments, fraud plays an important part.Generally, fraud justifying equntable relief against enforcementof the judgment must be extrinsic to the issues. Con't. Nat'lBank v. Holland Bank Co., 66 F. (2d) 823 (C.C.A. Mo. 1933). Theleading case of United States v. Throckmorten, 98 U. S. 61, 25L. ed. 93 (1878), held that fraudulent acts which will move a courtof equity to set aside or annul a judgment or decree relate tofrauds which are extrinsic to matters tried by the first court.BAR BRIEFSThis decision was based on the same principle as that of Tovey v.Young in 1702. This relates only to cases between the sameparties, to the same subject of controversy, and rendered by acourt of competent jurisdiction. In general, that is, the courtswill not again in such cases go into the merits of an action forthe purpose of detecting and annuling the fraud. United Statesv. Throckmorten, supra.We have stated that fraud to authorize a court's vacation ofa former judgment must in the great majority of cases be ex-trinsic. State v. Wright, 56 S. W. (2d) 950 (Tex. Civ. App. 1933).Extrinsic fraud is some act or conduct of the prevailing partywhich has prevented a fair submission of the controversy and in-cludes such acts as: keeping party from exhibiting his case fully,keeping party away from court, false promise of a compromise,no knowledge on part of defendant of the suit, where an attorneyconnives to defeat his client, and in all cases where there was nota real contest. Putnam v. Putnam, 126 Kan. 479, 268 Pac. 797(1928). Extrinsic fraud is that which is practiced directly uponthe party seeking relief against the judgment, which party hasbeen prevented from presenting all of his case to the court so thatbut for such fraud the decision would be different. United Statesv. Throckmorten, supra. Failure to give legal notice to adversaryhas been held to be extrinsic fraud, also to prevent a witness fromattending a trial. Sohler v. Sohler, 135 Cal. 323, 67 Pac. 282(1902). The fraud of a party who occupied the dual capacity ofexecutrix and mother, in pushing the claim of her son by herfirst marriage to heirship and distribution, was held to be extrin-sic fraud in concealing the truth from the legal minor heirs, dueto the fact that they were not properly represented at the trial.Sohler v. Sohler,, supra. Where the party who speaks falsely orwho refuses to sepak occupies a fiduciary relationship, the betterrule is that such fraud is extrinsic and will justify equitable in-terference. Latham v. McClenny, 36 Ariz. 337, 285 Pac. 684(1930). The holding is an example where the fraud is generallyconsidered intrinsic, but the court places a constructive trust onthe property or the proceeds for the rightful owners. This isdone where it would not be conscionable to let the wrongdoers re-tain the benefits of their wrongs. Still another example wouldbe the, case where perjured testimony is employed, usually con-sidered intrinsic fraud, and held to be extrinsic fraud, because thejurisdiction of the court has been imposed upon by the use ofsuch perjured testimony. Carey v. Carey, 121 Pa. Super. 251,183 Atl. 371 (1936).Intrinsic fraud is something that occurs in the course of anadversary proceeding, such as the production of forged documents,where adversary party has the opportunity to make the truth ap-pear. Kasparian v. Kasparian, 132 Cal. App. 773, 23 P. (2d) 802(1933). Intrinsic fraud includes such matters as: fraudulenttestimony, perjured testimony, or any such matter which wasactually presented to and tried by the court in rendering thejudgment assailed. Intrinsic fraud as such will not be sufficientBAR BRIEFSgrounds for setting aside the judgment by the holding of a major-ity of the courst today. Intrinsic fraud is usually that fraud bywhich a decree or judgment is obtained by false evidence uponissues within the case. Sohler v. Soliler, supra. A decree dis-tributing deceased wife's estate could not be set aside merely be-cause the husband falsely represented that the land was com-munity property, the fraud being intrinsic, that is, perjured testi-mony. Meeker v. Waddle, 83 Wash. 628, 145 Pac. 967 (1915). Afalse allegation by an administrator that he and his sister are soleheirs of the decedent, whereby a decree of distribution is procureddoes not entitle heirs to relief in equity, the fraud being intrinsic.But this same administrator's sending remittances to a third per-son according to an annual custom of the deceased, so as to mis-lead the other heirs into believing that the deceased was still liv-ing, constituted extrinsic fraud so as to justify equitable relief,the court held. Monk v. Morgan, 49 Cal. App. 154, 192 Pac. 1042(1920. Where title to land was obtained by intrinsic fraud incontravention of the terms of the will, the court placed a construc-tive trust on the land in favor of the rightful holders under thewill, recognizing as a matter of law the finality of the first de-cree as a muniment of title in the wrongdoers. In this case thefraud was of an intrinsic nature but the court imposed an invol-untary trust. Weyant v. Utah Savings Co., 54 Utah 181, 182 Pac.189, 9 A.L.R. 1119 (1919). The last mentioned remedy given bythe court is often used when the strict holding of extrinsic fraudwould create too great an injustice. The failure of an adminis-trator to give notice to a creditor of an estate of final settlement,according to an agreement between administrator and creditor,is not extrinsic fraud justifying equitable interference. Weyantv. Utah Savings Co., supra.In summary the following may be said of extrinsic and in-trinsic fraud in the vacating of judgments: most of the cases in-volve the setting aside of a judgment of a probate court, in whichit is required that the fraud must be of an .extrinsic nature, tovitiate the decree; but the courts do make. exceptions where thefacts and merits of the case so demand. The questiton of ex-trinsic and intrinsic fraud arises largely in cases of contracts,sales, divorce actions, wills, etc. Regardless of the subject of theaction, the rules stated apply to all of the cases. There is not onedefinition of extrinsic fraud for wills and another for sales; thedistinctions and differences remain the same. The fraud mustbe extrinsic to vacate the judgment, that is the strict and gen-erally followed construction. However, courts will often decidecases on their respective merits, as to the equitable rights ofparties involved, and impose a constructive trust, or employ aspecial construction upon the particular fraud in the giveninstance, so as to do equity and justice, but still lend lip-serviceto the distinctions normally articulated.ARLEY R. BJELLA,Third Year Law Student,University of North Dakota.

Vacation of Judgements - Extrinsic and Intrinsic Fraud

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Vacation of Judgements - Extrinsic and Intrinsic Fraud

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