Wilmer v. Placide

Stockbridge, J., delivered tbe opinion of tbe Court. Tbis is tbe fourth time tbat tbis ease in some aspect of it bas been before this Court. Tbe first time was in Wilmer v. Placide, 118 Md. 305 , and it is with tbe case then presented tbat tbe present appeal is most intimately connected. Tbe full record of the facts contained in tbe opinion prepared by Judge Pattison in tbat case renders a repetition of them entirely unnecessary.

In tbe present appeal a bill bas been filed in tbe Circuit Court of Baltimore City to vacate and set aside tbe decree entered in tbe case mentioned, and for various other incidental matters of relief, and reciting with some detail tbe prior litigation. A demurrer was interposed, which upon bearing was sustained, with leave to amend within a limited time, failing in which tbe bill was to be dismissed. Eor all practical purposes tbe bill is one under which tbe complainant seeks to obtain a retrial of tbe questions which were involved and bad been passed upon in tbe case reported in 118 Md., and tbe grounds upon which tbis was asked to be done were, first, fraud; and second, newly discovered evidence. Tbe fraud alleged in tbe present bill is said to consist in perjured evidence in tbe trial of tbe first cause upon a number of material points, and tbe allegation as to'newly discovered evidence, so far as is disclosed by tbe bill, consiste in tbe discovery ,of certain witnesses, who it is, averred would contradict this perjured evidence, and tbat such witnesses were beyond tbe reach of tbe complainant, or tbat be was ignorant of tbe testimony which they could give, at tbe time of tbe prior trial.

Elaborate briefs have been filed upon both sides, but tbe case presented is one to be readily disposed of. As to tbe allegation tbat tbe decree now sought to be set aside was obtained by perjured testimony, in the view of tbis ³⁴¹ Court it falls directly, under the rule as laid- down in the case of Md. Steel Co. v. Marney, 91 Md. 360 . In that case this Court cited at length, and adopted as the law of Maryland, the rule as announced in Pico v. Cohn, 91 Cal. 133 . A full collection of the cases upon both sides of this question will be found in an elaborate note to'the case of Pico v. Cohn , in 25 Am.

State Rep., beginning on page 165. See also Steen v. March, 132 Cal. 617 ; Holton v. Davis, 108 Fed. 150; Bradbury v. Wells, 16 L. R. A. (N. S.) 242, and note in Bleakley v. Barclay, 10 L. R. A. (N. S.) 230.

Also extensive note in Little Rock & F. S. Ry. Co. v. Wells, 54 Am. State Rep. 219, 233. So firmly is the rule settled that it has been adopted by various text liters.

Thus in- 2 Freeman on Judgments, sec. 489, it is said: “The procuring of a judgment by perjury or subordination of perjury is doubtless a fraud, and such a fraud as would induce equity to grant relief were it not for the fact that its existence can rarely or never be asr certained otherwise than by trying anew an issue already tried in the former action. Whenever an issue exists in any action or proceeding, each of the parties should anticipate that his adversary will offer evidence to support his side of it, and should be prepared to meet such evidence with counter proofs. Where he has an opportunity to do this, -and does not avail himself of it, or though availing himself of it, is unable to-overcome the effect upon the Court or jury of the evidence offered by his adversary, he cannot, in effect, obtain a retrial of the issue before another tribunal by charging that the judgment against him was procured by fraud.” And for this statement a long list of authorities is cited. In 6 Pomeroy’s Equity, sec. 649, it is said, that perjury-is a fraud,