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This list includes only those cases commen ted upon editorially or in our Notes of Important
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mented upon in our Notes of Important Decisions, and ann. case, annotated case.

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Central Law Journal,

St. Louis, Mo., January 7, 1921.

ENJOINING ENFORCEMENT OF JUDGMENT BECAUSE OF FRAUD OF PLAINTIFF IN SIMULATING INJURY.

A very important decision has just been rendered by the U. S. Circuit Court of Appeals (8th Cir.) holding that a federal

the decision of the United States Court of Appeals the judgment of the District Court is reversed and that Court instructed to grant the injunctive relief prayed for.

The fraud of Callicotte which the Court of Appeals declared was sufficient to vitiate his judgment was in a conspiracy between him and his witnesses to disguise the fact that his limbs were in good condition and in the use of a drug which produced tem

court may enjoin a personal injury judg-porary paralysis at the time of his exami

nation by defendant's physicians. It appeared in the testimony that from the date of the injury to the day when judgment was entered Callicotte was secreted in his home and was never seen except on rare oc

ment rendered by a state court if it subsequently appears that the injury of which the plaintiff complained was simulated. Chicago, Rock Island & Pac. R. R. v. Callicotte, 267 Fed. 799. The fact that the state court refused to set aside the judg-casions and then in a wheeled chair; that ment and that the United States District Court had refused to enjoin it, makes the decision of the Court of Appeals stand out as being somewhat unique.

Here are the facts. Callicotte was injured while in the employ of the Rock Island Railway at St. Joseph, Mo., on December 28, 1914. He brought suit in the state court alleging that his lower limbs had been permanently paralyzed by the injuries received. On June 23, 1915, he recovered a large judgment from which the defendant appealed to the Supreme Court of Missouri. About a year after the judgment defendant learned that Callicotte was enjoying the full use of his legs and on inquiry learned that the paralysis which he had alleged as the basis of his suit had been feigned and that his witnesses had testified falsely to assist him in getting the judgment. Defendant then asked the state court to set aside the judgment on motion in nature of an order for a writ of error, corum nobis, but the motion was overruled. It then filed this proceeding in the District Court to enjoin the enforcement of the judgment at law. The District Court sustained a demurrer to the plaintiff's evidence. Subsequently the Missouri Supreme Court affirmed the original judgment and also the order overruling the motion for a writ of error coram nobis. In

a month after the judgment he was seen walking as usual, claiming that the paralysis. had suddenly disappeared. One witness testified that she had recognized Callicotte in a woman's dress in his own yard bringing in coal, and that this occurred before the day of trial. Several of Callicotte's physicians, who claimed to have been deceived by him and his use of drugs to produce temporary paralysis, testified that they believed plaintiff's injury was simulated.

It is important to notice that the fraud. here does not consist in the perjury of plaintiff and his witnesses. It has been held over and over again that a judgment cannot be set aside on the ground of the perjury of witnesses or of the fraud of parties in respect of matters of evidence which were or could have been produced at the trial. United States v. Throckmorton, 98 U. S. 61; Pico v. Cohn, 91 Cal. 129; Hudgens v. Baugh, 225 Fed. 899; Hamilton v. McLean, 139 Mo. 678; Ross v. Wood, 70 N. Y. 8; Vance v. Burbank, 101 U. S. 514. The fraud which will justify interference. with a foreign judgment is fraud which is "extrinsic or collateral to the matter tried by the first court" to use the language of the Supreme Court in the Throckmorton case. That the Court of Appeals in the principal case appreciated this distinction is

clear from the following excerpt from the opinion. The Court said:

eral courts have had difficulty in classifying the cases as falling either under the rule in the Throckmorton case or in the Marshall case. And the Court of Appeals of the Seventh Circuit believed that there was a real conflict between the two cases and certified the question to the Supreme Court for de

"The facts in the case at bar have been already stated, and the question arises wherein lay the fraud. Was it simply in the false testimony at the time of the trial that plaintiff was permanently paralyzed? By no means. The fraud consisted also incision, but the Supreme Court dismissed the

a concocted history of the case, to-wit, that plaintiff a few days after the accident became paralyzed, and remained so continuously thereafter up to the time of the trial, a period of more than six months. The continuance of the paralysis for a period of more than six months was one of the most important factors on which all of the medical men, both for plaintiff and defendant, based their conclusions. We may disregard the question whether at the several times of the examinations of plaintiff he was artificially paralyzed by drugs or feigned paralysis through self-control. We may even assume that he had true paralysis on these several occasions if possible, but the fact remains that in the intervals he had the use of his legs, and had been seen and known to use them on many occasions. Yet this true history of the case was, by a conspiracy, concealed from the defendant; the false history of the case was given to the various doctors for the defendant, and even to one of the plaintiff's own doctors, either by the plaintiff himself or by another of his doctors. On this false and fraudulent foundation these medical experts rested their conclusions. In other words, they were induced by trickery to testify directly opposite to what they would undoubtedly have testified had they known the truth. The jury was deceived; the court was deceived; the witnesses many of them were deceived-all by this conspiracy and fraud, a fraud consisting not merely in the testimony of plaintiff on the trial, but also in this concocted plan outside of court, pursuant to which a false history of the case was made up and proclaimed."

The Throckmorton case, supra, was for a long time believed to prevent interference with a foreign judgment by means of an injunction on the ground of fraud in its procurement. It was not until the case of Marshall v. Holmes, 141 U. S. 589, that interest in this method of procedure was revived and ever since this decision the fed

certificate. Graver v. Faurot, 64 Fed. 24, 76 Fed. 257, 162 U. S. 435, 16 Sup. Ct. 799.

The Marshall case was a proceeding to enjoin the enforcement of a judgment of a nisi prius court of Louisiana. The bill had been brought in the State Court, but an attempt was made to remove the proceeding to the federal court on account of the diverse citizenship of the parties. The trial court denied the removal and on trial of the case refused the injunction. The case was affirmed by the Supreme Court of Louisiana and then taken to the Supreme Court of the United States which reversed the judgment on the ground that the state court had no jurisdiction to try the case after the filing of the petition for removal. But the Court went further and took cognizance of the declaration of the Supreme Court of Louisiana that there was no meri! in the proceeding. In reply to that contention the Court gave expression to the following statement which has been the subject of much discussion. The Court said:

"It is settled doctrine that any fact which clearly proves it to be against conscience to execute a judgment, and of which the injured party could not have availed himself in a court of law, or of which he might have availed himself at law, but was prevented by fraud or accident, unmixed with any fault or negligence in himself or his agents, will justify an application to a court of chancery."

The remedy which a defeated party to a judicial proceeding enjoys on account of fraud is either to set aside the judgment or to enjoin its enforcement. The latter is the remedy against a foreign judgment since only the court which renders a judgment set it aside. The decision in the

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