2. That the defendant, C. D., has, or claims to have, a judgment against one E. F., rendered in the justice court of day of 19-, for the sum of $ the county on and cost of day of 19, the said defendant, plaintiff in said action against said E. F. filed in said justice court an affidavit in garnishment against the plaintiff, and caused the summons in garnishment to issue against the plaintiff out of said justice court of county, Oklahoma, in said action. That afterwards, and on or about the day of, 19—, the justice before whom said cause was pending, unlawfully, and without any notice to this plaintiff, and without his knowledge or consent, and without any examination whatever of this plaintiff touching the matter of garnishment made, and in fraud of the rights of this plaintiff, found that this plaintiff was indebted to the said E. F. in the sum of $- , and thereon made the following order: "It is further ordered, considered, and adjudged by the court that said A. B., or his agent, pay to said plaintiff, out of the money now in or coming into his hands, allowing to the said E. F. $ debt and costs, forthwith, and plaintiff, C. D., have judgment against the said A. B. for $ and costs, and execution thereG. H., Justice of the Peace." for. 3. Plaintiff further alleges that no summons, and no true garnishment, was ever served on him in any manner whatever, nor did he ever, in person or by counsel, appear in any proceeding in said case, or in the garnishment proceeding therein, or know anything about said order or judgment, or pretended judgment, until about theday of 19. That he does not owe said E. F. or defendant any sum of money whatever, nor did he ever owe either of them any sum whatsoever, nor did he ever own or hold any contract that he would become indebted to said E. F., or liable to said E. F., in any sum whatever, nor did he have any property in his possession or under his control belonging to said E. F. 4. That afterwards, and on or about the 19, the said defendant required a certified transcript of said proceeding and order or judgment to be filed and spread upon the records of the district court in and for the district court of county, Oklahoma, and on the day of day of 19-, caused a further transcript thereof, certified by the court clerk of county to be filed in the court clerk's office of county, and spread upon the records thereof. That the said defendant threatened and is about to enforce the collection of said order or judgment against this plaintiff, and, unless prevented by a restraining order of this court, execution will be issued thereon against this plaintiff, and levied upon his property hereinbefore described and set out, for the satisfaction of said pretended judgment, and thereby cause great and irreparable injury to this plaintiff, and plaintiff alleges that he has no adequate remedy at law. 5. Plaintiff alleges that the transcript of said judgment, so as aforesaid filed in the district court of county, Oklahoma, is a lien upon the said property, to wit: (Describing same,) and casts a cloud on the title thereof, impedes and hinders the transfer of sale of said real estate of this plaintiff, and deteriorates the value thereof. 6. That defendant neglects and refuses to relieve the said cloud upon the title of this plaintiff's said real estate, and refuses and neglects to cancel said alleged and pretended judgment, so as aforesaid filed in the district court of county, Oklahoma, against the property of this plaintiff, and threatens and is about to levy an execution thereon to satisfy the said judgment so as aforesaid illegally and wrongfully obtained against this plaintiff in the said justice court of county, Oklahoma. day of - day of 19—, has 7. That the action heretofore commenced by him in the court against C. D., defendant herein, in which plaintiff recovered judgment against said defendant on the lately, to wit, on the 19-, been reversed by the Supreme Court of the state of Oklahoma, and the said action dismissed for the reason that the petition of this plaintiff in said action filed did not contain a description of the real estate of this plaintiff in the county of and state of Oklahoma, and did not contain a complaint that the judgment in question was a lien upon any special real estate of this plaintiff, and therefore holding that this court in said action had no jurisdiction, and that the decree for the plaintiff was a nullity. And the plaintiff now comes, and shows to the court, as heretofore alleged, that he is the owner and in possession of the real estate hereinbefore described, and that the judgment in question, hereinbefore alleged as filed in this court by said defendant, C. D., as a transcript from the courts of county, Oklahoma, is a cloud upon the title of plaintiff's said real estate, and is a lien in this county upon said real estate of this plaintiff, but illegally and wrongfully so, and in equity ought to be canceled of record. Wherefore, plaintiff prays this honorable court for an order of injunction, whereby said defendant, C. D., his heirs and assigns, may be perpetually enjoined from enforcing or attempting to enforce said pretended judgment; that this court order and decree that said pretended judgment be set aside, vacated and held for naught, and the apparent liens thereof on plaintiff's said real estate be declared of no effect; and that the same be canceled of record. X. Y., Attorney for Plaintiff. (Verification.) NOTE.-Form in Cobbey v. Wright, 34 Neb. 771, 52 N. W. 713. § 1475. Suit to vacate Equity has jurisdiction to vacate judgments fraudulently procured in probate proceedings.26 A bill in equity to set aside a decree cannot be sustained, where it is clear from the facts pleaded that plaintiff had an adequate remedy at law by an application to the court rendering the judgment to vacate or modify the same, of which he failed to avail himself without excuse shown.27 While the allegations in the petition that plaintiffs relied on the stenographer's transcript of the testimony on the trial and the same could not be had owing to the failure of the stenographer to so furnish it, that his excuse was that the same was lost, and for that reason plaintiffs could not serve a case-made, might not be sufficient for equitable interference; but when coupled with the allegations that the term of office of the trial judge expired before the expiration of the time fixed by him for settling the same, and that he removed from the state, it was sufficient to show that plaintiffs were de 26 Johnson v. Filtsch, 138 P. 165, 37 Okl. 510, judgment modified on rehearing 138 P. 806, 42 Okl. 64. For forms of petition, see ante, §§ 1474 and 1316. 27 Racey v. Racey, 73 P. 305, 12 Okl. 650. HON.PL.& PRAC.-89 (1409) prived of their right to appeal, and to invoke a court of equity to grant a new trial.28 Equity does not interfere with judgments at law unless complainant has equitable defense of which he could not avail himself at law, or was prevented from presenting a good defense at law by fraud or accident, unmixed with negligence of himself or agents." One who executed mortgages in order to evidence an indebtedness that did not exist, and then waived service and made default so that judgments of foreclosure might be taken against her, stands in no position to obtain relief against the judgments or against the sheriff's deed which was executed in satisfaction of one of them.3o Where a judgment obtained against several defendants is sought to be vacated on account of the fraud practiced by the successful party, and it is also alleged that it is void as to some of the defendants because no service of summons was made upon them, those not served are not confined to the remedy prescribed by statute of having the judgment vacated on motion, but may join with the other defendants in an action to have it set aside for the fraud.31 An objection to a judgment that the deed on which it was based was champertous, cannot be made basis of an action to vacate, where the court otherwise had jurisdiction.32 In an action to set aside a judgment, no defense can be set up against such judgment which might, with proper diligence, have been interposed in the action in which the judgment was rendered." § 1476. Parties In an action to vacate a judgment the plaintiff in whose name the judgment stands is a necessary party to the action. 34 28 Whitely v. St. Louis, E. R. & W. Ry. Co., 116 P. 165, 29 Okl. 63. 29 Ashton v. Board of Com'rs of Murray County, 58 Okl. 259, 158 P. 901. 30 Cheney v. Hovey, 44 P. 605, 56 Kan. 637. 31 Steele v. Duncan, 28 P. 206, 47 Kan. 511. Assuming, but not deciding, that the rule forbidding a judgment to be set aside for fraud in a matter thereby adjudicated does not apply where defendant had no actual notice of the action, no ground for vacation is established by showing that it was based on a claim insufficient in law but admitting of assertion in good faith. Wagner v. Beadle, 108 P. 859, 82 Kan, 468. 32 Stauffer v. Watts (Okl.) 174 P. 1031. 33 Johnson v. Reed, 57 P. 680, 125 Cal. 74; Rucker v. Langford, 71 P. 1123, 138 Cal. 611; Ohio & W. Mortgage & Trust Co. v. Carter, 58 P. 1040, 9 Kan. App. 621. 34 Weer v. Bell (Okl.) 174 P. 500. In a case where the petition alleged that a sum of money was held by an unincorporated association in trust for plaintiff; that the defendant officer of the association loaned the same on mortgage security, foreclosed the mortgage, and assigned the judgment to her codefendant; and that the codefendant was attempting to enforce the same,—and prayed an injunction restraining the enforcement thereof, the association and its members were necessary parties to the suit.35 § 1477. Pleading In action to vacate a judgment for fraud practiced by plaintiff in obtaining it, the petition must set forth the judgment complained of, state the grounds of defense, and be verified by affidavit. 36 35 Leroy Coal & Mining Co. v. Crowl, 45 P. 132, 3 Kan. App. 288. 36 First State Bank of Indiahoma v. Carr (Okl.) 180 P. 856. 37 37 A petition under Rev. Laws 1910, §§ 5267, 5269, to vacate a judgment on ground of fraud which sets up only a general denial by way of defense and does not state facts constituting it, is fatally defective. First State Bank of Indiahoma v. Carr (Okl.) 180 P. 856. In action to vacate a judgment for fraud practiced by plaintiff in obtaining it, the petition must be verified by affidavit. First State Bank of Indiahoma v. Carr (Okl.) 180 P. 856. In a proceeding to vacate a judgment against a defendant for fraud practiced by the plaintiff in obtaining it, the petition must set forth the judgment complained of, and must also fully state the facts constituting the defense. Unless the facts stated show an existing valid and meritorious defense, the petition is fatally defective. Mulvaney v. Lovejoy, 15 P. 181, 37 Kan. 305. In an action to vacate a judgment for fraud, a petition fails to state a cause of action where it relies solely on the ground that judgment was obtained by perjury, and shows that the issue to which the false testimony relates was raised by the pleading, and was tried on a conflict of evidence. Electric Plaster Co. v. Blue Rapids City Tp., 106 P. 1079, 81 Kan. 730, 25 L. R. A. (N. S.) 1237. In an action to set aside a judgment under Gen. St. 1897, c. 95, § 606, empowering the district court to vacate its own judgments for fraud practiced by the successful party in obtaining such a judgment, the facts showing such fraud must be stated or set forth in a plain and concise manner, as in other cases; mere knowledge of certain facts not being sufficient. The fraudulent acts and proceedings of such party, designed and practiced for the purpose of securing an unfair and unjust judgment, must be clearly shown. Ohio & W. Mortgage & Trust Co. v. Carter, 58 P. 1040, 9 Kan. App. 621. Since the statutes provide an exclusive proceeding for vacating a judgment rendered in attachment against a defendant who has died pending the action, a petition for injunction against the enforcement of such a judgment is insufficient unless it sets forth the judgment, the grounds to vacate it, and the |