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This list includes only those cases commented upon editorially or in our Notes of Important
Decisions, or in full annotated. The abbreviation Ed., indicates editorially-R. D., cases com.
mented upon in our Notes of Important Decisions, and ann. case, annotated case.

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Central Law Journal. the decision of the United States Court of

Appeals the judgment of the District Court St. Louis, Mo., January 7, 1921. is reversed and that Court instructed to

grant the injunctive relief prayed for. ENJOINING ENFORCEMENT OF JUDGMENT

BECAUSE OF FRAUD OF PLAINTIFF The fraud of Callicotte which the Court IN SIMULATING INJURY.

of Appeals declared was sufficient to vitiate

his judgment was in a conspiracy between A very important decision has just been

him and his witnesses to disguise the fact rendered by the U. S. Circuit Court of Ap

that his limbs were in good condition and peals (8th Cir.) holding that a federal

in the use of a drug which produced temcourt may enjoin a personal injury judg

porary paralysis at the time of his examiment rendered by a state court if it subse

nation by defendant's physicians. It apquently appears that the injury of which peared in the testimony that from the date the plaintiff complained was simulated.

of the injury to the day when judgment Chicago, Rock Island & Pac. R. R. v. Cal

was entered Callicotte was secreted in his licotte, 267 Fed. 799. The fact that the

home and was never seen except on rare ocstate court refused to set aside the judg

casions and then in a wheeled chair; that ment and that the United States District

a month after the judgment he was seen Court had refused to enjoin it, makes the

walking as usual, claiming that the paralysis decision of the Court of Appeals stand out

had suddenly disappeared. One witness as being somewhat unique.

testified that she had recognized Callicotte Here are the facts. Callicotte was in

in a woman's dress in his own yard bringjured while in the employ of the Rocking in coal, and that this occurred before Island Railway at St. Joseph, Mo., on De

the day of trial. Several of Callicotte's cember 28, 1914. He brought suit in the

physicians, who claimed to have been destate court alleging that his lower limbs

ceived by him and his use of drugs to prohad been permanently paralyzed by the in

duce temporary paralysis, testified that they juries received. On June 23, 1915, he re

believed plaintiff's injury was simulated. covered a large judgment from which the defendant appealed to the Supreme Court It is important to notice that the fraud of Missouri. About a year after the judg- here does not consist in the perjury of ment defendant learned that Callicotte was plaintiff and his witnesses. It has been enjoying the full use of his legs and on in- held over and over again that a judgment quiry learned that the paralysis which he cannot be set aside on the ground of the had alleged as the basis of his suit had been perjury of witnesses or of the fraud of parjeigned and that his witnesses had testified ties in respect of matters of evidence which falsely to assist him in getting the judg- were or could have been produced at the ment. Defendant then asked the state trial. United States v. Throckmorton, 98 court to set aside the judgment on motion U. S. 61; Pico v. Cohn, 91 Cal. 129; Hudin nature of an order for a writ of error, gens v. Baugh, 225 Fed. 899; Hamilton v. corum nobis, but the motion was overruled. McLean, 139 Mo. 678; Ross v. Wood, 70 It then filed this proceeding in the Dis- N. Y. 8; Vance v. Burbank, 101 U. S. 514. trict Court to enjoin the enforcement of The fraud which will justify interference the judgment at law. The District Court with a foreign judgment is fraud which is sustained a demurrer to the plaintiff's evi- 'extrinsic or collateral to the matter tried

" (ience. Subsequently the Missouri Su- | by the first court” to use the language of preme Court affirmed the original judg- the Supreme Court in the Throckmorton ment and also the order overruling the mo

That the Court of Appeals in the tion for a writ of error coram nobis. In principal case appreciated this distinction is clear from the following excerpt from the eral courts have had difficulty in classifying opinion. The Court said:

case.

the cases as falling either under the rule

in the Throckmorton case or in the Marshall "The facts in the case at bar have been already stated, and the question arises

case. And the Court of Appeals of the Sevwherein lay the fraud. Was it simply in

enth Circuit believed that there was a real the false testimony at the time of the trial conflict between the two cases and certified that plaintiff was permanently paralyzed the question to the Supreme Court for de

? By no means. The fraud consisted also incision, but the Supreme Court dismissed the a concocted history of the case, to-wit, that certificate. Graver v. Faurot, 64 Fed. 24, plaintiff a few days after the accident be

76 Fed. 257, 162 U. S. 435, 16 Sup. Ct. came paralyzed, and remained so continu

799. ously thereafter up to the time of the trial, a period of more than six months. The conti- The Marshall case was a proceeding to nuance of the paralysis for a period of more enjoin the enforcement of a judgment of a than six months was one of the most impor- nisi prius court of Louisiana. The bill had tant factors on which all of the medical men,

been brought in the State Court, but an atboth for plaintiff and defendant, based their conclusions. We may disregard the ques

tempt was made to remove the proceeding tion whether at the several times of the

to the federal court on account of the diexaminations of plaintiff he was artificially verse citizenship of the parties. The trial paralyzed by drugs or feigned paralysis court denied the removal and on trial oi through self-control. We may even assume

the case refused the injunction. The case that he had true paralysis on these several occasions if possible, but the fact remains

was affirmed by the Supreme Court of that in the intervals he had the use of his

Louisiana and then taken to the Supreme legs, and had been seen and known to use Court of the United States which reversed them on many occasions. Yet this true his- the judgment on the ground that the state tory of the case was, by a conspiracy, con- court had no jurisdiction to try the case cealed from the defendant; the false history of the case was given to the various doctors

after the filing of the petition for removal. for the defendant, and even to one of the

But the Court went further and took cogniplaintiff's own doctors, either by the plain- zance of the declaration of the Supreme tiff himself or by another of his doctors. Court of Louisiana that there was no meri! On this false and fraudulent foundation

in the proceeding. In reply to that contenthese medical experts rested their conclusions. In other words, they were induced

tion the Court gave expression to the folby trickery to testify directly opposite to lowing statement which has been the subwhat they would undoubtedly have testified ject of much discussion. The Court said: had they known the truth. The jury was "It is settled doctrine that any fact deceived; the court was deceived the wit

which clearly proves it to be against connesses many of them were deceived—all by science to execute a judgment, and of which this conspiracy and fraud, a fraud consist the injured party could not have availed ing not merely in the testimony of plaintiff himself in a court of law, or of which he on the trial, but also in this concocted plan might have availed himself at law, but was outside of court, pursuant to which a false

prevented by fraud or accident, unmixed history of the case was made up

and
pro-

with any fault or negligence in himself or claimed.”

his agents, will justify an application to a The Throckmorton case, supra, was for

court of chancery.” a long time believed to prevent interference The remedy which a defeated party to a with a foreign judgment by means of an judicial proceeding enjoys on account of injunction on the ground of fraud in its fraud is either to set aside the judgment or procurement. It was not until the case of to enjoin its enforcement. The latter is the Marshall v. Holmes, 141 U. S. 589, that remedy against a foreign judgment since interest in this method of procedure was re

only the court which renders a judgment vived and ever since this decision the fed- can set it aside. The decision in the

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