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continues to be in accord with that pronounced in the Throckmorton Case, supra, which refuses relief unless the fraud complained of is extrinsic to the matter tried in the primary suit.
Turning to the decisions of the Appellate Courts of several of the states, we find the same general established rules. In Ross v. Wood, 70 N. Y. 9, the Court of Appeals denied relief where it was sought to set aside a judgment upon the ground that it was obtained by false testimony. In Dringer v. Receiver, 42 N. J. Eq. 573, 8 Atl. 811, the Throckmorton Case is approved, and it was held that, where fraud is relied on to annul a judgment, the fraud, in order to confer jurisdiction, must consist in something extrinsic or outside of the matter which was actually tried, or so in issue that it could have been tried in the suit in which the judgment assailed was entered. The Supreme Court of California in Pico v. Cohn, 91 Cal. 129, 25 Pac. 970, 27 Pac. 537, 13 L. R. A. 336, 25 Am. St. Rep. 159, in an opinion by Chief Justice Beatty, very clearly announces that a decree will not be vacated merely because it was obtained by perjured testimony. The court said:
"The reason of this rule is, that there must be an end of litigation; and when parties have once submitted a matter, or have had the opportunity of submitting it, for investigation and determination, and when they have exhausted every means for reviewing such determination in the same proceedings, it must be regarded as final and conclusive, unless it can be shown that the jurisdiction of the court has been imposed upon, or that the prevailing party, by some extrinsic or collateral fraud, has prevented a fair submission of the controversy."
In Friese v. Hummel, 26 Or. 145, 37 Pac. 458, 46 Am. St. Rep. 610, the case of Pico v. Cohn was approved and followed. In Camp v. Ward, 37 Atl. 747, 69 Vt. 286, 60 Am. St. Rep. 929, the Supreme Court of Vermont refused to grant relief in equity where it was alleged the judgment was obtained by perjured testimony. In McDougall v. Walling, 58 Pac. 669, 21 Wash. 478, 75 Am. St. Rep. 849, the Supreme Court of Washington followed the Throckmorton Case, supra, and Pico v. Cohn, supra, notwithstanding an express statutory provision of that state to the effect that the superior court may vacate a judgment for fraud practiced by the successful party in obtaining it; the court holding that perjury does not constitute such fraud as will authorize a judgment to be set aside except under circumstances that deceive the opposite party as to the nature of the testimony, and relieve him of the implication of want of diligence in discovering its falsity. In Maryland Steel Co. v. Marney, 46 Atl. 1077, 91 Md. 360, the Court of Appeals of Maryland laid down the same rule, expressly declining to recognize any distinction between the instances where witnesses have perjured themselves and where the successful party has been guilty of subornation of perjury.
It would be useless to cite further authority. The cases we have collected demonstrate that the trend of modern decision sustains the reason of the Throckmorton Case as founded upon wisdom in the policy of the law, whereby, after a fair trial and submission of a controversy and after motion for a new trial has been denied, and after an appeal to a superior tribunal and a review have been had, a judgment will not be vacated, at a subsequent term, merely because it was based on perjured testimony by a party. Defendants cite Munro v. Callahan, 75 N. W. 151, 55 Neb. 75, 70 Am. St. Rep. 366.
The decision in that case was justified upon an express statute of the state authorizing a judgment to be vacated, after the term at which it was rendered, for fraud practiced by the successful party; and perjury was regarded as within the fraud contemplated by the Code provision. The discussion by the court seems to go farther than the point decided and to sustain the defendant's position. But in so far as it conflicts with the rule of decision by the federal courts, we cannot agree with it. Edson v. Edson, 108 Mass. 590, 11 Am. Rep. 393, was not a case involving intrinsic fraud or fraud upon the trial. The court, taking the facts alleged in the application to set aside the decree of divorce, distinguished the case in this way:
"These set forth a case in which it is clear that a party has procured a judgment of this court in his favor by the perpetration of a gross fraud, by means of which he induced this court to take cognizance of a case at a term of the court in a county in which it could not legally exercise jurisdiction over the parties, and to hear and determine it without giving to the adverse party any due or legal notice of the proceedings, or any opportunity to appear and be heard in the suit. The question to be determined is, whether a judgment so obtained can be re-examined and set aside by the party aggrieved by the fraud, or whether it is to be taken as forever binding and conclusive on the rights and obligations of the parties."
The reasoning of the court is similar to that in Graver v. Faurot, supra. Nugent v. Met. St. Ry. Co., 61 N. Y. Supp. 476, 46 App. Div. 105, also cited by respondents, was decided upon a motion for a new trial based upon a discovery made by the losing party that the judgment and verdict had been obtained by means of a conspiracy between plaintiff and one of her attorneys and several witnesses. That a judgment will not be vacated merely because it is based upon or procured by perjured testimony was conceded by the court, but it was shown that the case was taken out of the general rule by the added fraud of a conspiracy. Holton v. Davis, 108 Fed. 138, 47 C. C. A. 246, decided by this court, does not conflict with the established rules. There the bill alleged a conspiracy between one of the parties and outside persons and the carrying out of the conspiracy and a fraud upon the court. The facts pleaded were relied upon as showing extrinsic and collateral fraud, and as the court cited the Throckmorton Case it is not to be inferred that it intended to go beyond the correct rule to be deduced therefrom.
Defendants contend, however, that power to vacate the judgment existed under the Alaska Codes. It is therein provided that a District Court may in its discretion, and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment or order or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect. Section 93, Alaska Code Civ. Proc. Defendants have failed to make a satisfactory showing under any of the enumerated grounds of this statute. The issue tried in the original suit was narrowed to whether the plaintiffs sunk hole No. 3 to bed rock. Their verified complaint alleged that they had, and defendants by their answer denied that they had; so that the controversy, as was stated by Judge Hawley in the opinion of the court in Meehan v. Nelson, supra, was "confined solely to hole No. 3. Was it sunk to bedrock?" Defendants went into the trial of the cause knowing precisely what plaintiffs would have to swear to to prevail, and they met the issues presented, but were defeated. They were not surprised, there was no inadvertence or mistake, and they are not to be relieved now if they omitted to produce evidence they might have procured. Having tried the merits of their suit, if the term is over, they are estopped by the conclusion of the court. The affidavits filed in support of and against the motion to vacate are a continuation of conflicting testimony upon the identical issues tried before. It is said, however, that the statute of Alaska (section 93) is taken from Oregon, and that it has been construed by the Supreme Court of that state in a way favorable to appellees in Thompson v. Connell, 31 Or. 231, 48 Pac. 467, 65 Am. St. Rep. 818. That decision, however, does not sustain the contention that perjury alone committed upon the trial of a case by the prevailing party is a ground for relief under a statute like section 93 of the Alaska Code. The facts relied upon in that case were that defendant and another person, with intent to deceive plaintiff and induce him not to employ an attorney in the original suit, represented that Connell would extend the time for answering and that a settlement was contemplated by which plaintiff would be discharged from his alleged liability, and that plaintiff relied upon the representations so made and did not employ an attorney or appear in the case, but that defendant, conspiring to take advantage of him and to defraud him, caused judgment to be rendered against him without his knowledge or consent and contrary to the agreement. These facts were held to constitute "surprise" under the statute. The decision is in no way authority in the present case.
So if it is a fact that the term of court at which the decree was rendered had expired before the motion to vacate was filed, then the case is but one where the litigants have had their day in court, and have been afforded full opportunity to try the merits of their controversy. They had a fair trial. The defendants lost. They were given the right of appeal and availed themselves of it. Again they were unsuccessful; and no fraud extrinsic or collateral to the matter tried being shown, and no statutory ground for vacating the decree appearing, it will not do for them now to seek to retry the issues already passed upon. The litigation should be ended.
For the reasons already given, the appeal is dismissed.
GREAT LAKES TOWING CO. v. MILL TRANSP. CO.
No. 1,662. 1. SHIPPING-RIGHT TO LIMITATION OF LIABILITY-CONSTRUCTION OF STATUTE.
Section 18 of Act June 26, 1884 (23 Stat. 57, c. 121 (U. S. Comp. St. 1901, p. 2945]), which provides that “the individual liability of a shipowner shall be limited to the proportion of any or all debts and liabilities
that his individual share of the vessel bears to the whole; and the aggregate liabilities of all the owners of a vessel on account of the same shall not exceed the value of such vessel and freight pending," and Rev. St. § 4283 [U. S. Comp. St. 1901, p. 2943), are in pari materia, and to be construed together. The provision of the older act by which the limita. tion of liability therein provided for is confined to things "done, occasioned or incurred without the privity of knowledge of such owner or owners," also qualifies the latter act, which was not intended to apply to liabilities of the owners of vessels for the consequences of their personal faults or upon obligations personally contracted by them.
[Ed. Note.—Limitation of owner's liability, see note to The Longfellow,
45 C. C. A. 387.) 2. SAME-WRECKING SERVICE PERFORMED UNDER CONTRACT.
A towing company entered into a contract with the managing agent of petitioner, which was the owner of certain vessels on the Great Lakes, by which it agreed to perform all towing and wrecking service required by such vessels during the season at certain stated prices. One of petitioner's vessels having stranded, the towing company was called on pursuant to said contract, and sent a tug with wrecking apparatus to the assistance of such vessel, where it spent several days in pumping and attempting to get her afloat, but unsuccessfully, and she was lost. Held, that section 18 of Act June 26, 1881 (23 Stat. 57, c. 121 [U. S. Comp. St. 1901, p. 2945]), did not entitle petitioner to a limitation of liability for the services so rendered by the towing company under its contract to the
value of the salvage recovered from the wreck. 3. PRINCIPAL AND AGENT—CONTRACT MADE BY AGENT-ADOPTION BY PRIN
If a principal not disclosed by a contract made by and in the name of his agent subsequently claims the benefit of it, the contract thereby becomes his own to the same extent as if his name had originally appeared as a contracting party.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 40, Principal and
Agent, 88 502, 503, 645.] 4. SHIPPING-PERSONAL LIABILITY OF SHIPOWNERS-CONTRACTS MADE BY
The contracts of a managing agent of a steamship company, within the sphere of his authority, are the actual contracts of the owner and not of the vessels to which they relate, as in case of contracts made by a master on a voyage or in foreign ports.
Appeal from the District Court of the United States for the Eastern District of Michigan.
H. D. Goulder, for appellant.
SEVERENS, Circuit Judge. The controversy in this case arose upon a petition of the appellee, the Mills Transportation Company, for an order limiting its liability for services rendered by the appellant in endeavoring to rescue the steamer Newago, a vessel belonging to the appellee, which had been stranded upon a reef in that part of Lake Huron, known as the Georgian Bay. The accident to the Newago occurred on November 17, 1903. Prior to this accident, and on July 9, 1903, the appellant addressed to H. McMorran, who was the managing agent for the appellee of the Newago and other of its vessels, as well as of other parties for other vessels, the following proposition:
“The Great Lakes Towing Company.
"Cleveland, Ohio, July 9th, 1903. "To H. McMorran, Pt. Huron, Mich.:
"We hereby propose to furnish all the towing and wrecking services required by the boats under your management during the balance of the year 1903,
at points covered by the Great Lakes towing tariff for 1903, on the following terms:
“In consideration of your agreeing to have all of the boats under your management employ the tugs and wrecking appliances owned or specified by us during the balance of the year 1903,
at points covered by The Great Lakes Towing Tariff we will allow the following discounts from said tariff :
"Harbor Towing. At Chicago and Tonawanda 35 per cent. discount from said tariff, and at all other points 30 per cent. discount from said tariff, with a further discount in both cases of 10 per cent. for cash on all bills paid within the month following that in which the service is rendered.
"Wrecking or Bottom Work. A discount of 20 per cent. from said tariff, and a further discount of 5 per cent. for cash if bills are paid within the month following that in which the service is rendered.
“Soo. For landing stern barge at the Soo the rate to be $5.00 flat, without discounts, for each service.
“Lake Towing. When barges are transferred from port to port, where there is a lake tow, no charge to be made for the in tow.
"Maximum Rate. The maximum rate for and in and out tow at any port where only the one cargo is handled shall not exceed seventy-five dollars ($75.00) net each.
"All charges for labor, meals and other items representing cash advances shall be net, and payable on demand.
"These rates only apply to vessels actually engaged in the lumber trade, and refer only to boats of twelve hundred thousand capacity and under.
“We will endeavor to have tugs of suitable power on hand at all times to provide a first-class service, but shall not be held liable for damages in case we are not able at any time to furnish such service. In case, however, at any time, for any reason, we are unable to have tugs on hand to serve your boats, you are at liberty to engage any other tugs to serve you for that time, but without the right to charge us any difference in price. "The vessels towed shall furnish good and sufficient lines.
"The Great Lakes Towing Company,
"By C. H. Sinclair, G. M." This proposition was on its receipt accepted in the following language thereunder written:
"The undersigned, H. McMorran, mang. owner, manager of boats named below, hereby accepts the above proposition, for said boats and for the con. sideration named therein, agrees to cause said boats to employ the tugs, lighters and wrecking outfit owned or specified by The Great Lakes Towing Com. pany, at points named in said The Great Lakes Towing Tariff, on above named terms, at all times during the balance of the year 1903 when they require such service.
H. McMorran. “Steamers. "Steamer Gogebic, “Steamer Newago, "Steamer Pawnee, “Steamer Britannic, "Steamer Mary Groh, “Steamer M. Ross.
“Consorts. "Schr. Checotah, "Barge M. E. Orton, "Barge J. R. Edwards, "Barge W. A. Young, "Schr. Thos. Howland."