Dodd v. Holden , 205 Ark. 817 ( 1943 )

These facts are undisputed: That W. L. Dodd, grandfather of appellants, Ruth Dodd and Alice Dodd Henley, died seized and possessed of the lands involved in this suit; that at the time of his death said W. L. Dodd was a resident of Red River county, Texas, and that an instrument was admitted to probate as his last will and testament by the probate court of that county, which, under the laws of Texas, was the proper tribunal; that upon a duly certified copy of said last will and testament and of the order of the Texas court admitting it to probate being filed, this will was admitted to probate by proper proceedings in the probate court of Jackson county, Arkansas, where are situated the lands involved herein; that in the proceedings by which the will was probated in Texas the original will was not presented to the court, but an identical copy of same was filed; that a last will and testament, of which the instrument probated was an exact copy, was signed by W. L. Dodd and properly witnessed by A. C. Tisdale and William Ramsey; that when this suit was filed the time for appealing from the order of the Texas court admitting the will to probate and from the order admitting the will to probate in Jackson county, Arkansas, had not expired; that no appeal from either of said orders was taken; that, under the terms of this will, an undivided one-third interest in the lands involved herein was devised to D. P. Dodd, father of appellants, for life and the remainder in fee to appellants; and that appellants have never conveyed their interest in said lands. The lower court found that neither of these daughters of D. P. Dodd, appellants herein, was estopped to claim their interest in the lands by any act on their part, and this finding is not contrary to the weight of the evidence.

The sole ground upon which these appellants are being deprived of the property which their grandfather owned and devised to them is that the order of the Texas court probating this will was obtained by fraud.

Fraud is never presumed, but must always be proved. Hembey v. Cornelius, 182 Ark. 417, 31 S.W.2d 539; U.S. Ozone Co. v. Morrilton Ice Co., 186 Ark. 485,54 S.W.2d 282; Wasson v. Lightle, 188 Ark. 440, 66 S.W.2d 652; Browning v. Tevis, 188 Ark. 1167, 69 S.W.2d 284; Brummitt v. Wilmans, 189 Ark. 1171, 70 S.W.2d 841.

What was the fraud sufficient to justify a chancery court in Arkansas in setting aside a solemn judgment of a court of competent jurisdiction of a sister state to which, under the constitution of the United States, courts of all other states must give full faith and credit?

According to the majority opinion herein the fraud proved in the case at bar consisted of this and only this: That instead of the original will of Dodd being presented to the probate court in Texas there was presented to the court an identical copy of the original will. There was no proof in this case that this will was copied or that the copy instead of the original was presented to the court with any sinister intention. In fact, commonsense dictates that no improper motive could have actuated the proponents in filing the copy instead of the original will. The same result was obtained by the use of the copy as would have been obtained by the use of the original. No possible harm could have resulted to anyone by the use of this identical copy instead of the original will. "In equity as well as at law fraud and injury must concur to furnish ground for judicial action: . . ." Irons v. Reyburn, 11 Ark. (6 Eng.) 378. "Fraud or deceit without injury is not actionable, . . ." McCombs v. Mansfield, 194 Ark. 208, 106 S.W.2d 579.

But assuming, for the sake of argument, that this copy of the will was a false, fraudulent or forged instrument, this would not be sufficient to set aside, in a collateral proceeding, the judgment of the Texas court admitting the will to probate. In Black, Law of Judgments, vol. 1, p. 445, the rule is thus stated: "A judgment is not generally open to collateral attack because based on a fraudulent instrument or on perjured testimony."

"The fraud for which a judgment may be vacated or enjoined in equity must be in the procurement of the judgment. If the cause of action is vitiated by fraud, this is a defense which must be interposed, and unless its interposition is prevented by fraud, it cannot be asserted against the judgment; `for judgments are impeachable for those frauds only which are extrinsic to the merits of the case, and by which the court has been imposed upon or misled into a false judgment. They are not impeachable for frauds relating to the merits between the parties. All mistakes and errors must be corrected from within by motion for a new trial, or to reopen the judgment, or by appeal. The fraud must be in some matter other than the issue in controversy in the action.

The rule that fraud, to be a ground for relief, must be extrinsic or collateral to the matter tried in the first action, is almost universally acquiesced in. It is merely an application of the general principle that equity will not interfere simply to give a second opportunity to relitigate that which has already been fully litigated. Extrinsic fraud has been defined to be actual fraud, such that there is on the part of the person chargeable with it malus animus, the mala mens, putting itself in motion and acting in order to take an undue advantage of some other person for the purpose of actually and knowingly defrauding him.' Extrinsic or collateral fraud operates not upon matters pertaining to the judgment itself, but relates to the manner in which it is procured.

The oft-quoted statement of Justice Miller in the leading Throckmorton case, illustrates and shows the rationale of the rule, though of course it does not exhaust the situations which may justify equitable intervention. `Where the unsuccessful party has been prevented from exhibiting fully his case, by fraud or deception practiced on him by his opponent, as by keeping him away from court, a false promise of compromise; or where the defendant never had knowledge of the suit, being kept in ignorance by the acts of the plaintiff; or where an attorney fraudulently and without authority assumes to represent a party and connives at his defeat; or where the attorney regularly employed corruptly sells out his client's interest to the other side — these and similar cases which show that there has never been a real contest in the trial or hearing of the case, are reasons for which a new suit may be sustained to set aside and annul the former judgment or decree and open the case for a new and fair hearing.'" Freeman on Judgments, 1233.

In the case of Turley v. Owen, 188 Ark. 1067,69 S.W.2d 882, the court said: "In Cassady v. Norris,118 Ark. 449, 177 S.W. 10, quoting from the seventh headnote, we held: `Fraud as the basis of an action to impeach a judgment, must be a fraud extrinsic of the matter tried in the cause; it must not consist of any false or fraudulent act or testimony, the truth of which was or might have been in issue in the proceeding before the court which resulted in the judgment that is assailed; it must be a fraud practiced upon the court in the procurement of the judgment.' In 15 R.C.L., p. 762, the rule is stated thus: `The acts for which a court of equity may, on account of fraud, set aside or annul a judgment at law between the same parties have relationship only to fraud which is extrinsic or collateral to the matter tried by the first court, and not to fraud in the matter on which the judgment was rendered. In the case of United States v. Throckmorton 98 U.S. 61, 25 L. Ed. 93, the Supreme Court of the United States had under consideration a petition which sought to set aside and vacate a previous order and judgment, because based upon an instrument in writing which was falsely and fraudulently executed. The court stated the rule as follows: `That the mischief of retrying every case in which the judgment or decree rendered on false testimony given by perjured witnesses, or on contracts or documents whose genuineness or validity was in issue, and which are afterwards ascertained to be forged or fraudulent, would be greater, by reason of the endless nature of the strife, than any compensation arising from doing justice in individual cases.' Thus it appears that practically all the authorities agree that judgments will not be set aside and vacated merely because they were superinduced by false testimony or based upon false, fraudulent or forged instruments." (Italics supplied.)

Other Arkansas decisions in which the rule that fraud which would permit the setting aside of a judgment on collateral attack must be extrinsic and must relate to the procurement of the judgment are Burbridge v. Gotsch, 107 Ark. 136, 154 S.W. 200; Reeves v. Conger,103 Ark. 446, 147 S.W. 438; Hall v. Cox, 104 Ark. 303, 149 S.W. 80; Holland v. Wait, 191 Ark. 405, 86 S.W.2d 415; Baker v. State, 201 Ark. 652, 147 S.W.2d 17; Kersh Lake Drainage District v. Johnson, 203 Ark. 315,157 S.W.2d 39.

While some of the language of the opinion in the case of Boynton v. Ashabranner, 75 Ark. 415, 88 S.W. 566,1011, 91 S.W. 20, cited in the majority opinion in the case at bar, might be said to lend faint support to the holding of the majority, an examination of that opinion will disclose that the language referred to was obiter dicta. The gist of that opinion is contained in the following excerpt: "The court had the power to set aside the confirmation on proper showing that it was procured by fraud, but we do not think the proof adduced was sufficient to warrant it in this case. The defendant testified that he had paid the taxes for the three years preceding the confirmation, and exhibited his tax receipts, and it follows from that testimony that the petitioner for confirmation could not have paid the taxes for those years. But the confirmation decree recites the exhibition by the petitioner of tax receipts, and the court necessarily found before entering the decree that petitioner had paid the taxes. It is not sufficient to show now that that finding was erroneous because, in the absence of fraud, that finding is conclusive, and another trial of the question cannot be permitted. The court may have reached its conclusion upon false or incompetent testimony as to payment of taxes, yet that would not constitute grounds for reopening the question and trying it anew."

In my opinion, there was not shown in this case any such fraud as would justify the vacating, by collateral proceeding, of the judgment of the probate court of Red River county, Texas, admitting W. L. Dodd's will to probate. I, therefore, respectfully dissent from the opinion of the majority.