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believing said representations to be true and sale, and the act and purpose right and just, and to protect her interest, she did, on the eleventh day of November, 1879, join her husband in a deed conveying said lot to said Thurston for the purpose aforesaid; that Thurston, in pursuance of said representations, on the same day, conveyed said property to appellant.
She further avers that the conveyances were made as aforesaid before judgment was taken against her and the said Charles, on said notes and mortgage, in the suit aforesaid; that there being a balance due on said judgment as aforesaid, the defendants Struckman and Charles Shultz did fraudulently and wrongfully, to carry out said conspiracy, institute proceedings in the Jackson circuit court against this plaintiff and the defendant Charles Shultz, to set aside the aforesaid conveyance, charging it to have been made to defraud the creditors of said Charles Shultz, the said Henry knowing at the time the allegations in that respect to be false; that for the purpose of carrying out said conspiracy during the pendency of said action said Charles Shultz represented to her that able counsel had been employed to defend her rights, that she need not employ counsel, and that her rights would be fully protected; that Hon. Jason B. Brown appeared without being employed by her, and while so engaged was ignorant of the conspiracy aforesaid, whereas, in truth and in fact, all the representations aforesaid, except the employment of counsel, were wickedly false and untrue, and made to permanently injure this plaintiff'; that with the knowledge and approbation of his codefendant, Charles Shultz, he withheld from said counsel all the facts in said suit, such facts giving appellant the title in fee simple in and to the abovedescribed real estate; that each one of the defendants knew 329 that the appellant was the bona fide owner of the same, and that said property was worth at that time $2,500, and that she was the owner in fee of one-third of lot 8 aforesaid, said mortgage having been given to secure the debt of her husband, and in addition thereto she was the owuer of the $450 mortgage aforesaid, the gift of her father aforesaid. They knew she was entitled to $600 under the exemption law of the state, she being a householder, yet, notwithstanding all these facts, had said cause set for trial on August 29th, appellant having none of her rights set up or defended, the facts as aforesaid being withheld from counsel without the knowledge of the plaintiff, and in furtherance of said conspiracy procured judgment setting aside said conveyance to her and subjecting said property to sale for the payment of said small judgment, to wit, $254.15, then wrongfully held by Henry Struckman against the defendant, Charles Shultz; that she was ignorant of the conspiracy, and was fraudulently informed by defendant Shultz that her property rights were duly protected, and that she had not lost any of her property in said suit, which she believed until the ejectment suit here. inafter mentioned; that execution was issued on the judge ment against said Charles, which was levied on said property without plaintiff's knowledge; that on the seventh day of June, 1884, said property was sold at sheriff's sale on said execution to appellee Margaret Roeger for $486.65, and that, after getting her deed, she brought an ejectment suit, and recovered judgment of ejectment against appellant, on which & writ of possession was issued, and thereupon she was dispossessed, etc., by which she is damaged $9,000, for which she prays judgment.
There was no error in sustaining the demurrer to this complaint. The point to it all is that the conveyance to her by her husband through a third person 330 was, in a suit for that purpose, set aside as a fraud against her husband's creditors, and subjected and sold to pay his debts. Until that judgment is out of the way the appellant cannot recover another judgment which operates as an impeachment of the first judgment. If the judgment by which appellant's deed was set aside was fraudulently obtained, and the complaint had stated facts sufficient to establish that charge, yet, so long as the judginent stands, there could be no recovery of damages for so obtaining it, because, so long as it stands, it imports absolute verity as to every proposition of law and fact essential to its existence against all the parties to it: 1 Freeman on Judgments, sec. 289.
It imports that it was just, equitable, lawful, and right to set aside appellant's deed and subject the property to sale to pay the debts of her husband, with absolute verity. That being true, for the purposes of this case it makes no difference how wicked the conspiracy was that is charged against all the parties to bring about that result, as the result was just, right, and lawful, the conspiracy and evil acts charged did not harm appellant, did not deprive her of any legal right, and, therefore, no ground to complain is shown.
Before the complaint would be sufficient, it should show buch a state of facts as that she could not get rid of the judge ment by some proceeding for that purpose known to the law.
If the complaint had stated facts sufficient to show that the judgment was obtained by fraud it still would have been insuflicient, because she was a party to that judgment and she can only avail herself of that fraud in a direct proceeding to vacate and set aside the judgment: Earle v. Earle, 91 Ind. 27; Nealis v. Dicks, 72 Ind. 374; Hogg v. Link, 90 Ind. 346.
331 The same is true of the other judgment mentioned, by which the mortgage was foreclosed.
The allegation that her father's will was her property, and that her brother Henry secreted it, does not make a cause of action, because it is not alleged that it was of any value to her or anybody else, and, moreover, if it may be supposed to have some value, it is not stated that the secretion of the will worked any harm or damage to her. If, notwithstanding its wrongful secretion, appellant received all that it bequeathed to her, then its secretion by appellee Struckman could not be the basis of a judgment for damages.
As to the note with which she charges her brother of wrongfully taking out of her possession the complaint shows that it belonged to the estate of her father. In any possible view we think the complaint wholly failed to state a cause of action.
The judgment is affirmed.
JUDGMENTS-CONCLUSIVENESS OF.--A judgment of a court having juris. diction is binding on the parties, no matter how erroneous it may be, until reverse l or annulled: Morrill v. Morrill, 20 Or. 96; 23 Ain. St. Rep. 95, and extended note; Peck v. McLean, 36 Minn. 228; 1 Am. St. Rep. 665; Goull v. Sternburg, 128 Ill. 510; 15 Am. St. Rep. 138, and extended note. A judgment, though clearly erroneous, is conclusive as an estoppel: People v. Holluday, 93 Cal. 241; 27 Am. St. Rep. 186. See, also, the cases collected in the note to Burner v. Hevener, 26 Am. St. Rep. 955,
JUDGMENTS-IMPEACHING FOR FRAUD.-A domestic judgment of a court having jurisdiction of the subject matter and of the parties cannot be questioned collaterally for fraud aliunde the record by the parties or privies: Morrill v. Morrill, 20 Or. 96; 23 Am. St. Rep. 95, and note: Doro v. Blake, 148 Ill. 76; 39 Am St. Rep. 156, and note. A judgment or decree obtained by fraud is not void in the sense that it can be assailed in a strictly collateral proceeding: Smithson v. Smithson, 37 Neb. 535; 40 Am. St. Rep. 504, and note.
NEW PITTSBURGH COAL AND COKE COMPANY V.
(136 INDIANA, 398.) MASTER AND SERVANT-FELLOW-SERVANTS—VICE-PRINCIPAL –Employees
serving a common master, engaged in the same common pursuit, and in accomplishing the same cominon object, are fellow-servants. The mere fact that one of them has power to employ or discharge the others
does not make hiin a vice-principal. MASTER AND SERVANT-VICE-PRINCIPAL.- A foreman may be, and ordi.
narily is, but a mere fellow.servant. The burden is upon an injured servant to show by allegations in his complaint that such foreman, whose negligence caused the injury, is a vice-principal and not a fellow.
servant. MASTER AND SERVANT-VICE-PRINCIPALS. — The question as to whether an
employee is a vice-principal or a fellow-servant must be determined by ascertaining whether the act performed or duty omitted is one, the doing of which is charged upon the master, and by him delegated to the servant. If it is the servant is a vice-principal, and the master is liable for injury resulting from such act or omission by such servant, provided the injured servant is free from negligence and has not
assuined the hazard. MASTER AND SERVANT-VICE-PRINCIPALS. — Whether an employee is a vice
principal or a fellow-servant does not depend upon his rank, but upon the fact as to whether the duty omitted or the act performed by him is one owing from the master to the injured servant, the discharge of
which the master has conferred upon the negligent servant. MASTER AND SERVANT-DUTY OF SERVANT-LIABILITY OF MASTER. — Fel.
low-servants owe to their master a diligent and watchful care over his business, and to each other a vigilance and caution for their own safety. The master is not liable for the consequences of their unfaithfulness to him unless he continues them in his employ with knowledge thereof,
nor is he liable when he has violated no duty owing by him to them. MASTER AND SERVANT-VICE-PRINCIPALS—LIABILITY OF MASTER.-A serv.
ant injured by the negligence of another servant must show by his com. plaint that some duty of the master to him has been violated in order to hold the latter liable, and, if such duty is one, the discharge of which has been delegated by the master to a servant, not only the duty but the delegation of it, as well as its violation, must be alleged and shown by the complaint. J. S. Bays, for the appellant. W. C. Hultz and G. G. Riley, for the appellee.
899 HACKNEY, J. The appellee sued the appellant in the court below for personal injuries, and recovered judgment for five thousand dollars.
His complaint was in four paragraphs, the first of which was, in substance, as follows:
The appellee was employed to do general work in and about the appellant's coke-yards, and to haul away asbes and other refuse, baul slack, and clean the yards, from July 30, 1888, to and including February 19, 1889; that he was inexperienced in working with machinery, as the defendant well knew; that on said last-named day one Gus Lawrence was defendant's agent to employ and discharge its workmen, including the plaintiff, and to control their works; that said Lawrence negligently directed the plaintiff to clean certain of defendant's slack-elevators, and the place of performing such work was dangerous, in that it became necessary to stand close to the machinery of the elevator, and upon the buckets thereof, and that, if the machinery was put in motion while he was so occupied, injury was sure to follow, of which dangers said defendant well knew; that plaintiff entered upon the work so assigned, in the presence and under the direction of said Lawrence, and “reposed confidence in the prudence and caution of the defendant, and that defendant would notify him of the starting of the machinery, so that he could remove" from its dangers; that while so engaged, and without notice or warning, the defendant negligently put the machinery in motion, whereby plaintiff, without fault or neg. ligence on his part, was drawn into the guide of the elevator belt and buckets, and sustained the injuries complained of.
400 The second paragraph varies from the first only in alleging that the plaintiff's employment was special, in that it was to haul slack, clean the yard, and haul ashes and other refuse, and that he was inexperienced and unacquainted with the use of said machinery, and ignorant of the dangerous character of the work.
The third paragraph is, in effect, the same as the second, excepting that it alleges that the plaintiff was directed to perform said service near the time for starting the machinery in motion, and that the defendant knew, or by ordinary care could have known, of the nearness of the time for starting said machinery, and that it would start while plaintiff was so engaged, and of his dangerous situation.
The fourth paragraph differs from the first only in allego ing, in addition to the facts contained in the first, “that the place furnished the plaintiff to work in was not a safe place, but was extremely dangerous in this, that death or great bodily harm was sure to result to one who occupied the place 80 assigned the plaintiff, when the machinery was in motion,” and “that plaintiff did not know of the proximity of the time