§ 1470. Review

Where a former adjudication is relied on as a defense, it should be made to appear by the verdict and findings or judgment that the issues involved are res judicata."

Whether there is such identity of the parties and subject-matter or cause of action as will support a plea of res judicata is a question of law, when determinable from an inspection of the record."

§ 1471. Foreign judgments

Recovery cannot be had on the transcript of a judgment rendered in another state, where it appears therefrom that the proceedings were not had according to the laws of the state of Oklahoma relating to judgments by confession; there being no proof that the laws of the other state are different from those of the state of Oklahoma.

An action may be maintained on a foreign decree adjudging the unconditional payment of money by defendant, notwithstanding, as a preliminary, the judgment plaintiff is required to deposit certain debts with the clerk to be delivered to the judgment debtor on the payment of the money."

Where a judgment for alimony rendered in another state was allowed to become dormant, under the laws of that state, and after the husband's death no steps were taken to revive the same, it is not a legal or equitable lien on land left by the husband in this state, and cannot be enforced by action here.10

whereon no execution has issued is barred by the five-years statute, unless within an exception. Schuyler County Bank of Lancaster, Mo., v. Bradbury, 43 P. 254, 56 Kan. 355.

6 James McCord Co. v. Johnson Grocery Co. (Okl.) 172 P. 438.

7 Alfrey v. Colbert, 44 Okl. 246, 144 P. 179.

8 Harn v. Cole, 95 P. 415, 20 Okl. 553; McNair v. Underwood, 55 Okl. 585, 155 P. 553.

McLain v. Parker, 129 P. 1140, 88 Kan. 717, judgment affirmed on rehearing 131 P. 153, 88 Kan. 873.

10 Chapman v. Chapman, 29 P. 1071, 48 Kan. 636.

(1402)

Equity will not grant relief against a judgment at law, on grounds which were available at law, and which complainant, through negligence, failed to interpose.11

Mistake warranting cancellation of a judgment and declaration of a resulting trust must have prevented a fair hearing.12 A party without notice of default judgment in time to file a motion to vacate it may have its enforcement restrained.18

$1473. Fraud

A domestic judgment may be attacked by an equitable proceeding to set aside the judgment for fraud.1

In an equitable suit, fraud which will justify cancellation of an order or judgment must be extraneous to the issues and such as prevented complaining party from having a fair hearing.15 Ordi

11 Howard v. Eddy, 43 P. 1133, 56 Kan. 498; Crist v. Cosby, 69 P. SS5, 11 Okl. 635.

12 Hollingshead v. Hollingshead, 79 Okl. 163, 193 P. 412.

13 Pettis v. Johnston, 78 Okl. 277, 190 P. 681.

14 McIntosh v. Holtgrave, 79 Okl. 63, 191 P. 739.

15 Driskill v. Quinn (Okl.) 170 P. 495; Hollingshead v. Hollingshead, 79 Okl. 292, 193 P. 412; Brown v. Trent, 128 P. 895, 36 Okl. 239.

A judgment or decree may not be set aside for fraud unless the fraud is extrinsic or collateral to the questions determined in the action in which the judgment was rendered. Estes v. Timmons, 73 P. 303, 12 Okl. 537, judgment affirmed 26 S. Ct. 85, 199 U. S. 391, 50 L. Ed. 241; O'Brien v. Van ArsdaleOsborne Brokerage Co., 80 Okl. 174, 194 P. 1083.

By "extrinsic or collateral fraud” for which a court of equity will set aside a judgment rendered by a court of competent jurisdiction is meant some act or conduct of the prevailing party which has prevented a fair submission of the controversy. Garrett Biblical Institute v. Minard, 108 P. 80, 82 Kan. 338. District courts have power to vacate and annul orders of other courts for

narily it is fraud which prevents a party from fairly presenting his case, or fraud upon the court, or its process, and not fraud in the cause of action, which will authorize the setting aside of a final judgment.16

A fraud for which a judgment may be set aside must be actual fraud involving intentional wrong, as distinguished from legal or constructive fraud.17

A judgment of a court of record, entered by reason of the fraud of the party benefited thereby, is voidable at the suit of the judgment debtor when brought within two years from the discovery of the fraud, as provided by statute.18

fraud, where such fraud is extraneous to the issues in the proceeding attacked, especially where the court has been imposed upon by such fraud. Elrod v. Adair, 54 Okl. 207, 153 P. 660; Id., 54 Okl. 218, 220, 156 P. 625, 634; McIntosh v. Holtgrave, 79 Okl. 63, 191 P. 739.

District courts may vacate orders of other courts for fraud inducing the order. Wray v. Howard, 79 Okl. 223, 192 P. 584.

16 Ely Walker Dry Goods Co. v. Smith (Okl.) 160 P. 898.

The nonresident payee of a note, to which the maker had a good defense, in order to confer apparent jurisdiction on a court located at a great distance from the residence of the maker, and to deprive him of an opportunity to defend, made a colorable indorsement, and procured a nonresident to make a colorable guaranty, and caused suit to be brought in the name of the indorsee against the maker and guarantor, and obtained a domestic summons for the guarantor, who accepted service in such manner that the court would presume, from an inspection, that the service was accepted in the county where suit was brought, and thereafter a summons was issued on the maker in the county of his residence, and a judgment by default taken; the maker being ignorant of the fraud. Held, that the judgment was fraudulent and void, and its enforcement in the hands of the payee would be enjoined. McConnell v. Hicks, 68 P. 651, 64 Kan. 828.

The fraud which would authorize a court to vacate a judgment in an action for that purpose under Code Civ. Proc. § 570 (Gen. St. 1901, § 5056), must be collateral to the matter involved in the former action, and justify the conclusion that but for such fraud the result would have been different. Electric Plaster Co. v. Blue Rapids City Tp., 106 P. 1079, 81 Kan. 730, 25 L. R. A. (N. S.) 1237.

17 Wagner v. Beadle, 108 P. 859, 82 Kan, 468.

The word "fraud," in the fourth paragraph of section 601, c. 95, Geu. St. 1897, empowering the district court to vacate its own judgments for "fraud” practiced by the successful party in obtaining them, is used in its common, direct sense. It means fraud in fact, not fraud in law, and embraces only intentional wrong. Ohio & W. Mortgage & Trust Co. v. Carter, 58 P. 1040, 9 Kan. App. 621.

18 City of Guthrie v. McKennon, 91 P. 851, 19 Okl, 306.

The provisions of the statute which limit the time in which action may be

In a proceeding to vacate a judgment against a defendant for fraud practiced by the plaintiff in obtaining it, the petition must fully state the facts constituting the defense. Unless the facts. stated show an existing valid and meritorious defense, the petition. is fatally defective.19

§ 1474. Injunction-Forms

An injunction against a judgment will not be granted in favor of a party who, through want of diligence, has lost his right of appeal.20

The enforcement of an alleged void judgment will not be enjoined, where plaintiff had an adequate and complete remedy at law by proceeding to vacate the judgment, of which he had not availed himself or been deprived.21

Equity will enjoin execution of a judgment at law when the com

brought to reverse or vacate a judgment to two years from its date, do not apply to an equitable action to cancel the judgment on the ground of fraud within two years from its discovery. City of Guthrie v. McKennon, 91 P. 851, 19 Okl. 306; Harvey v. Dolan (Kan.) 176 P. 134.

19 Provins v. Lovi, 50 P. 81, 6 Okl. 94.

20 Rumsey v. Howe, 50 Okl. 327, 150 P. 1060; Missouri, O. & G. Ry. Co. v. Riley, 127 P. 391, 34 Okl. 760.

21 Frost v. Akin, 60 Okl. 174, 159 P. 752.

An injunction against the enforcement of a void judgment of a county court was properly denied, where it appears that plaintiff had an adequate remedy by motion th vacate or by appeal, and that he has not availed himself of such remedy or been unavoidably deprived thereof. Bilby v. Stuart, 39 Okl. 451, 135 P. 931.

On refusal of the clerk to approve an undertaking to stay execution until after review on appeal, the appropriate remedy is by application to the court to compel the clerk to perform that duty, and not by an action to enjoin the enforcement of the judgment. Supreme Lodge of Order of Select Friends v. Carey, 47 P. 621, 57 Kan. 655.

Where a judgment has been rendered against a party without service, actual or constructive, he has a complete adequate remedy at law against the same under the statute, which provides that the district court may vacate or modify its own judgment at or after the term at which such judgment was made, for "irregularity" in obtaining such judgment, since a judgment without service is irregularly obtained. Hockaday v. Jones, 56 P. 1054, 8 Okl. 156. Under the statute, providing that a summons in an action for the recovery of money only must have indorsed thereon the amount for which the judgment will be rendered if defendant fails to appear, a summons without such indorsement is sufficient to give the court jurisdiction of the party and of the subject-matter, and the judgment rendered thereon is voidable only, so that injunction to restrain its enforcement will not be granted. Lawton v. Nich

plainant has an equitable defense of which he could not avail himself at law because it did not amount to a legal defense.22

In an action to enjoin collection of judgment and to have damages ascertained and set off against the judgment, where plaintiff had withdrawn his counterclaim in the action in which the judg ment was rendered, he thereby waived it and could not make it the basis of equitable relief.28

A party against whom a judgment has been rendered by default, which judgment is void for want of jurisdiction over the person of defendant, cannot enjoin an execution on said judgment, or annul such judgment, unless he shows that he has a meritorious defense, that he has no adequate remedy at law, and that the existence of such judgment is not attributable to his own neglect.2

24

An action to enjoin a judgment may be maintained in any county in which it is sought to put it in force, even though the judgment was rendered in another county.25

INJUNCTION AGAINST ENFORCEMENT OF VOID JUDGMENT

(Caption.)

Petition

Comes now the plaintiffs, A. B., and for cause of action against the defendant, C. D., alleges and states:

1. That plaintiff is the owner in fee simple and in possession of the following described real estate: (Describing same.)

olas, 73 P. 262, 12 Okl. 550; Tootle v. Ellis, 65 P. 675, 63 Kan. 422, 88 Am. St. Rep. 246.

A defendant in a foreclosure suit answered. After a decree against him, he commenced an action to enjoin the judgment, and to set aside a sheriff's sale under the decree, alleging fraud in the judgment. Such questions could have been litigated in the foreclosure suit. Held, that the injunction proceedings could not be maintained. Myers v. Jones, 61 Kan. 191, 59 P. 275. Where defendant in ejectment was served personally by summons, and failed and neglected to plead or answer, and judgment was taken against him by default, a suit to restrain plaintiff in ejectment from executing the writ of restitution and enforcing the judgment of the court will lie, where there is no allegation that the failure of defendant in ejectment to answer or plead, or set up his defense, if he had any, in said action, was due to any wrong, misconduct, or fraud on the part of plaintiff in ejectment, and no reason or cause is shown for the failure to set up such defense. Herbein v. Moore, 61 P. 1060, 10 Okl. 317.

22 Reynolds v. Hill (Okl.) 169 P. 625.

23 Kibby v. Binion (Okl.) 172 P. 1091.

24 Hockaday v. Jones, 56 P. 1054, 8 Okl. 156.

25 Busenbark v. Busenbark, 7 P. 245, 33 Kan, 572.