REGLA et al. v. MARTIN, 19 Cal. 463

Baldwin, J. delivered the opinion of the Court Field, C. J concurring. This was a bill, filed by the heirs of one Castro, to set aside a decree obtained against them in 1853, by defendant, for the specific performance of a contract between himself and their ancestor. Martin obtained a decree after certain proceedings, which are set out in the bill. The ground upon which this bill proceeds, is fraud upon the part of Martin in obtaining the decree, and in the proceedings leading to it, and also other grounds applicable to three of the defendants, who were infants at the time of Martin’s decree.

The question of fraud in fact was tried by the Court below, and the finding is against the charge. 1. This finding, under the circumstances, is conclusive. A very clear case of mistake on the part of the Court below must be shown, upon an issue of fact, to induce us to interfere with the conclusions of the Judge trying the case and hearing the testimony. The matters relied on by the appellants to establish the fraud are mostly, if not entirely, mere circumstances of suspicious or equivocal import, and to which we could not attach, even if unexplaned, conclusive effect.

Besides, it seems no motion was made for a new trial upon the ground that the finding was contrary to the evidence. 2. It is urged that the decree in the case of Martin v. Castro's Heirs does not give a day to the infants, after arriving at age, to show cause against the decree, and that this omission makes it fraudulent. This position is untenable. It would not be any ground of objection to the decree, so far as the adults are concerned, that this omission occurred as to the minors.

The minors either were or were not entitled by law to this privilege; if entitled, the omission to recite it in the decree would not deprive them of it; if not entitled, no injury was done by the omission. But in no event could a mere irregularity or omission of this sort in a decree be construed as a fraud, or as conclusive evidence of a fraud, annulling the decree; for if this were so, it is impossible to see why any other irregularity or error would not avoid a judgment for this, cause, and thus appeals would become useless. 3.

It is scarcely necessary for a decision in this case to consider whether these minor heirs were entitled, under our statute, to come in before or after arriving of age, and contest the decree, or show cause against it; for it seems that in this very case, they have availed themselves of their asserted right; that they have in this proceeding assailed this decree—for fraud, among other things—and that the charge has been found against them.

It can scarcely be contended that an infant, against whom a decree has been regularly rendered after service of process, etc., has a peremptory right at any future time to claim that the decree is to be held for naught, and that at his mere option all the matters of the original litigation shall be retried. It is not necessary to notice the other points. Judgment affirmed.