KANSAS CITY, FT. S. & M. R. CO. v. MORGAN, 76 F. 429

BARR, District Judge, after stating the facts, delivered the opinion of the court. The appellant has assigned several errors in addition to those which raise the question of whether or not the judgment entered by the circuit court of Shelby county, Tenn., in March, 1893, is a bar to the present action; but, as that question is the decisive one, we will not consider the other errors assigned. That judgment was rendered by a court of general jurisdiction, and as such is conclusive upon the plaintiff, who was a party thereto, unless it can be collaterally impeached.

The parties and the cause of action in that suit are identical with the cause of action set up in the present suit, if we look alone to the declarations of the plaintiff in each case, and the issues made thereon. The reply of the plaintiff; in this action, which was demurred to and which demurrer was overruled, is a collateral, and not a direct, attack upon the judgment of March, 1893.

It is true that the plaintiff; was at that time an infant under the age of 21 years, and sued by his next friend, who was his father; but does tbe fact of his infancy make that judgment any the less binding and conclusive, if the court rendering it had jurisdiction of tbe parties and of the subject-matter? The infancy of the plaintiff did not suspend his right of action for the injury caused him by the alleged negligence of the railroad company until he became of age or had a guardian appointed. On the contrary, be had the right to sue at any time by his next friend, in a court having jurisdiction thereof.

Green v. Harrison, 3 Sneed. 131; Miles v. Kaigler, 10 Yerg. 10. But the next friend brings such suit with tbe implied consent of the court, and under its supervision. In Kingsbury v. Buckner, 134 U. S. 673, 10 Sup.

Ct. 646, the supreme court, by Justice Harlan, said: “The infant, by his prochein ami, having prosecuted an appeal to the supreme court of Illinois from the original decree rendered in the suit brought by him, and having appeared by guardian ad litem to the appeal of Buckner and wife, is as much hound by the action of that court, in respect to mere errors of law, not involving jurisdiction, as if he had been an adult when the appeal was taken. In Gregory v.

Molesworth, 3 Atk. 626, Lord Hardwicke said that ‘it is right to follow the rule of law, where it is held an infant is as much hound by a judgment in his own action, as if of full age; and this is general, unless gross laches or fraud or collusion appear in the prochein ami; then the infant might open it by a new bill.’ So in Lord Brook v. Lord Hertford, 2 P. Wms. 518, 519: ‘An infant, when plaintiff, is as much bound and as little privileged as. one of full age.’ See, also, Brown v. Armistead, 6 Rand. 594; Jameson v. Moseley, 4 T. B. Mon. 414; Hanna v. Spott’s Heirs, 5 B. Mon. 362.” See Corker v. Jones, 110 U.

S. 318, 4 Sup. Ct. 19, and Colt v. Colt, 111 U. S. 566, 4 Sup. Ct. 553. In the ease of Corker v. Jones, Jones was the guardian of Corker, and as such purchased a tract of land for $15,000, payable in Confederate money, which was advanced by Jones, the guardian, out of his own funds. The conveyance was made to him as guardian of Corker, and Corker was charged with it in the guardian’s account, as an advancement.

Subsequently, while Corker was still an infant, about 11 years of age, a bill in equity was filed in the superior court of Burke county, Ga., in the name of Corker, by his mother and next friend, against Jones, praying for the rescission of the transaction between the guardian and ward, and that the guardian should take back the land, and the ward be relieved from the payment of the consideration. This relief was granted by the court. Subsequently, after the ward became of age, he sued to have this judgment canceled and set aside. The supreme court refused to set the judgment aside.

In that case it was claimed that the decree was voidable because taken against an infant without the protection of a guardian ad litem. The court said on this point: “If the infant had been defendant the objection could only be taken by appeal or bill of review, and not collaterally. But the infant was plaintiff, and sued by his next friend, which was proper, and there is no more ground for saying that the decree was against the infant than in his favor.

He was relieved from the burden of the purchase, which was the object of the suit.” The allegations of the plaintiff’s replication, which were taken to be true on demurrer, do not make out a case of actual fraud, in that there is no deceit practiced or misrepresentations made by the defendant or its representative to the plaintiff or to his next friend, nor were they in any way overreached.

It is alleged in effect that there had been an agreed settlement between the infant and his father, on the one side, and the railroad company on the other, and that suit was instituted, and issue made and submitted to the circuit court of Shelby county, Tenn., and judgment entered by that court by consent, and that this was done by the defendant’s attorneys for the purpose of making legal and valid a settlement which had been previously made between the parties, and which was invalid because of the infancy of the plaintiff, and the want of authority of his father to make such a settlement.

This is alleged in the plea to be a legal fraud, and that in fact there was no real controversy and no real litigation, hence the pretended judgment was invalid and void. These allegations contradict the record of the proceedings and the judgment which was entered in the circuit court of Shelby county. If it be conceded that these facts, as alleged and as subsequently proven, would be a legal fraud, it is not such as can be set up in a collateral attack upon the judgment.

Indeed, if set up in a direct proceeding, by bill in equity to set aside the judgment, the court would only grant the relief upon being satisfied that the judgment which had been rendered was against the interest of the infant. See Corker v. Jones, supra. In such a case an original bill in equity should be filed to set aside the judgment or decree. Story, Eq. Pl. §§ 427. 428.

If the replication be considered as alleging fraud in the obtenlion of the judgment of the circuit court of Shelby county, it is decided by the supreme court of the United States that this cannot be done in a collateral proceeding, but must be done in a direct proceeding. In the case of Christmas v. Russell, 5 Wall. 304, which was a suit by Russell against Christmas, a citizen and resident of Mississippi, on a judgment rendered in the state of Kentucky, Christmas pleaded that the judgment set forth was obtained and procured by the plaintiff by fraud.

The plea was demurred to and the demurrer sustained, and thal judgment affirmed in the supreme court. Justice Clifford, who delivered the opinion, referred to many decisions in the state courts to sustain this view, and in the course of the opinion said: “Domestic judgments, under The rule of the common law, could not be collaterally impeached or called in question if rendered in a court of competent jurisdiction. It could only be done by writ of error, petition for a new trial, or bill in chancery.

Third persons only, says Saunders, could set up the defense of fraud or collusion, and not the parties to the record, whose only relief was in equity, except in the case of a judgment obtained on a cognovit or warrant of attorney.” This decision was again approved in Michaels v. Post, 21. Wall. 426, and Maxwell v. Stewart, 22 Wall. 77. In the recent case of Hilton v. Guyot, 159 U. S. 185, 16 Sup. Ct. 151, the court, in reviewing the cases decided by the supreme court, said: “In Hanley v. Donoghue (1885) 116 U. S. 1, 4, 6 Sup. Ct. 242, 244, and in Wisconsin v. Pelican Ins. Co. (1888) 127 U. S. 265, 292, 8 Sup.

Ct. 1370, 1375, It was held that judgments recovei'ed in one slate of the Union, when proved in the courts of another, differed from judgments recovered in a foreign country in no other respect than in not being re-examinable on their merits, nor impeachable for fraud in obtaining them, if rendered by a court having jurisdiction of the cause and of the parlies.” This would clearly indicate that judgments of another state are not impeachable for fraud in obtaining them, in a collateral proceeding, which was then being discussed by the court in a suit brought upon a foreign judgment. Freem.

Judgin. § 132, says, “Fraud in procuring a judgment cannot be shown by the parties to such judgment in a collateral proceeding:” referring to many authorities. Black, Judgm. § 290, says, “In a majority of the states the rule is well settled that it is not permissible for a party or privy to attack a judgment in a collateral proceeding- on account of fraud.” We tbink it is a well-settled rule in the federal courts that a judgment rendered m another state cannot be impeached in a collateral proceeding for fraud in obtaining it. The cases of Welch v. Mandeville, 1 Wheat. 235, and Lord v.

Veazie, 8 How. 254, are not in conflict with this view. Welch v. Mandeville is a case in which suit was brought on an action of covenant in the name of the original payee, Welch, for the benefit of his assignee, Prior, who was the equitable assignee, against Mandeville and Jameson. In that suit they pleaded that Welch, in a former suit in the same court, and between the same parties, for the same debt, had come into court and acknowledged that he (Welch) would no further prosecute said suit, and thence altogether withdrew, himself.

The entry which was thus made in the former suit upon the same obligation, which was claimed as a bar to the second action, was, “This suit is dismissed, agreed,” and was made by the clerk without the order of the court. The court below held the plea a good one, and the supreme court reversed it, saying among other things: “Admitting the dismissal of a suit by agreement to be a good bar to a subsequent suit (on which we give no opinion), it can only be so when it is bona fide, and not for the purpose of defeating the rights of third parties.

It would be strange, indeed, if a party could be allowed, under the protection of its forms, to defeat the whole purpose and object of the law itself.” Thus, it is seen that there was no judgment of the court, but only an entry by the clerk, and that Prior was really not a party to the suit in which that entry was made, although the suit had been brought for his benefit. Lord v. Veazie was a case in the supreme court on writ of error.

It there appeared to the satisfaction of the court that the alleged controversy between the two parties before the court was not a real controversy, but one gotten up between them to injuriously affect the interest of a third party; and, this being the case, at the instance of a third party, not before the court, the court dismissed the writ of error, and also ordered the original judgment set aside. In that case the court considered that they 'were being imposed upon by nominal litigants, to the injury of a third party not before the court, and, having jurisdiction of the case by writ of error, disposed of it.

There was no adjudication of the rights as between even the original parties, only the case was dismissed. In Tennessee the courts seem to have decided when judgments rendered in another state, and sued on in that state, can be impeached for fraud, by answer or plea, in such a suit (Coffee v. Neely, 2 Heisk. 304; Turley v. Taylor, 6 Baxt. 376), but deny the right to impeach domestic judgments for fraud in obtaining them by collateral proceeding, and require such judgments to be set aside by direct proceedings. Thus, in Conway v.

Brown, 5 Heisk. 237, which was a bill in equity to enforce a judgment at law and to foreclose a mortgage, it was contended that the court had no jurisdiction, and the court said: “The record imports absolute verity, and cannot be disputed except by showing, in a proceeding for that purpose, that the judgment was procured by the fraud of the plaintiff therein.” So in the case of Walker v.

Day, 8 Baxt. 77, in considering a suit in which a decree had been attempted to be impeached by a collateral proceeding, the court said: “If the decree had no foundation in truth, but was predicated of a proceeding false in all of its parts and false in every particular, but upon its face substantial, the rule is the-same; and, before a party can avail himself of such objections existing in extraneous facts, he must invoke the powers of a ooiii’t of chancery to declare it void. This must he done by a direct proceeding to vacate, * * * and in a suit for that especial purpose.” See, also, Kelley v.

Mize, 3 Sneed, 59. As this case, though removed from the state court, was in the federal court when the judgment of the Shelby county circuit court was pleaded, it is to be regarded as the judgment of another state, in Pennoyer v. Neff, 95 U.

S. 714, in speaking of a judgment which had been rendered in the circuit court of the state of Oregon, which had been pleaded to sustain the title of the defendant in an ejectment suit, the court said: •‘Whilst they [the federal courts 1 are not foreign tribunals, in their relations :o the state courts, they are tribunals of a different sovereignty, exercising a, ' distinct and independent jurisdiction, and are bound to give the judgments of the state courts only the same faith and credit which the courts of another (date are bound to give to them.” The difference between law and equity has been distinctly recognized and adhered to in the federal courts; hence, if the remedy be in equity, federal courts will not allow it to be asserted at law, and vice versa.

The next inquiry is whether the replication of the plaintiff is good as an impeachment of the judgment of the circuit court of Shelby county for want of jurisdiction of the subject-matter which was adjudged. The language of this replication does not in terms raise the question of jurisdiction, but rather assumes that the court had jurisdiction of the subject-matter as alleged in the declaration, but did not in fact or in law adjudicate upon that subject, but upon another and different subject-matter.

The circuit court admitted parol evidence, seemingly on the theory that this replication did raise the question of the jurisdiction of the Shelby circuit court over the subject-matter in which the judgment was entered, and that it was beyond the jurisdiction of a common-law court by a judgment to approve a previous agreement made by the parties to the suit, which was invalid by reason of the infancy of one of the parties, and want of authority in his next friend, and that such an order could only he made bv a court of chancery.

The Tennessee statutes provide (section 5042): “The chancery court shall have concurrent jurisdiction with the county court of the persons and estates of infants and the appointment and removal of guardians.” And also in

section 5043: “It shall have and exercise concurrent jurisdiction with the circuit courts of all civil actions triable at law except actions for injuries to person, property or character involving unliquidated damages.” It may be doubted, if the judgment be considered as merely one by consent, that it was beyond the power of that court, who, under the statute, had the exclusive jurisdiction of suits for the recovery for injuries to the person, and was a court of general jurisdiction.

The Massachusetts supreme court refused to allow a compromise agreement made out of court with an infant through a next friend to be pleaded against that infant in a suit brought for the same personal injury, but, in the opinion of the court, strongly indicated that a compromise judgment entered by a court at the instance of the next friend would have been a bar to such an action. Tripp v. Gifford (Mass.) 29 N. E. 208. In Longnecker v.

Greenwade, 5 Dana, 516, the Kentucky court sustained a judgment which dismissed a slander suit at the instance of the infant and her father, although the next friend of the infant objected to such judgment, and appealed to the court of appeals therefrom.

But conceding that the court, by reason of its exclusive jurisdiction over injuries to persons, had no right to enter a judgment by consent in satisfaction for such injuries, and that it could only be done in a court of equity, it does not follow that the want of jurisdiction in that court can be shown by extrinsic evidence, and the record contradicted, in a collateral proceeding. It is now settled that federal courts can determine whether or not the court who renders a judgment in another state has jurisdiction of the parties or of the subject-matter (see Thompson v. Whitman, 18 Wall. 457; Knowles v.

Coke Co., 19 Wall. 60), and, in ascertaining whether or not the party against whom the judgment is rendered is before the court, will look beyond the record itself, and bear other evidence (Shelton v. Tiffin, 6 How. 162). In that case the court allowed evidence to be received that the attorney who had entered the appearance of the party against whom the judgment had been rendered had no authority.

It may also be shown that the subject-matter, as. it appears from the record, was beyond the jurisdiction of the court who rendered the judgment; but it cannot be shown by parol or extrinsic evidence that the subject-matter in the record was not that which was adjudicated, but something else, and that the subject-matter which was adjudicated was beyond the jurisdiction of the court. If this were allowed, then the distinction between a direct and collateral attack upon a judgment would be ignored, and the verity of the record in which a court of general jurisdiction had entered a judgment destroyed.

If parol or extrinsic evidence can be introduced for such a purpose as this, we cannot well imagine a case in which it could not be pleaded and introduced in a collateral attack upon a judgment. The language of the supreme court, especially in the case of Thompson v.

Whitman, is very broad in regard to the right to impeach a judgment because of the want of jurisdiction both of the parties and the subject-matter; but that case only goes to the extent of deciding that the New Jersey court, which had condemned the sloop-Whitman and her cargo for violation of the New Jersey statutes, bad no jurisdiction of the schooner seized and condemned, because there bad been no seizure within the county of Monmouth, and under the statute, unless there was such a seizure, the court bad no jurisdiction of the res.

All of the cases in the supreme court which have allowed the jurisdiction of a state court to be impeached collaterally for want of jurisdiction, and the record contradicted by extraneous evidence, have been confined to the question of jurisdiction over the parties; and we know of no case, and none has been cited, which goes to the extent of allowing parol or extrinsic evidence to contradict the record in which the judgment was rendered, and show a different subject-matter- than that made out by that record, for the purpose of showing that the court had no jurisdiction.

Here the parties were before the court, and it must be conceded that the court had jurisdiction of the subject-matter,. as presented by the pleadings and as adjudicated upon. The question of jurisdiction, if it can arise at all, is upon a state of facts which can be presented only by parol and extraneous evidence, and this we think cannot be done in a collateral attack upon a judgment. If this could be done, it would, in a large measure, destroy the con-clusireness of judgments, and the distinction between a collateral and a direct attack upon a judgment rendered by a court of general jurisdiction.

We conclude that the court erred in overruling the demurrer to the replication filed by the plaintiff to the defendant’s plea in bar, and erred in allowing parol evidence to sustain said plea. The judgment must therefore be reversed, and a new trial awarded, and for such further proceedings in conformity to the opinion herein.