COTZHAUSEN 'II. ORTING.
I do ·not attach much force' to the suggestion, made in behalf of the witness, that the case was removed to this court on the application of the complainant, and that the latter, having removed his case, cann.ot it is lost by his own act, complain ofthe loss of this deposition, as it seems to me to make no difference who removed the case; but the difficulty is that this witness had not yetmade his deposition when the case was removed, and as the state court has lost jurisdiction of the witness, and he never was within the jurisdiction of this court, there is nl> power in this court to compel a completion of the deposition. The ql1estion isa novel one,' and; so far as 1 have been able to examine, with the industry of counsel to aid me, I do not find that it has ever been raised or decided. I think 'the proceeding is one which mllst be held to hav'6 fallen:betweeh· the two jurisdictions, and the inconvenience is one which must be borne as an incidellt to the right to remove cases from the state totbe federal courts,and also as an incident to the practice of taking down testimony by short-halld, to be afterwards'written out at length, and then: IC?'mp.leted by the signature and oath of the witness. The motion IS overruled.
CoTZHAUBEN "'. KERTING.
(Qireuit Oourt,':E.D. Wiaeonain. December 26, 1886.)
EQ,Ul'J'Y-lULIEF AGAINST JUDGMENT AT LAW-PERJURY-CoNSPlRACY ABD Bunl'RISil:." , ' ,
'rtis not sufficient ground for relief in equity against a jUdgment at llLwthat the :verdict was obtained by perjury; and the addition, in a bill praying such relief, of allegations of conspiracy and surprise. does not make a case for interference in equity, with ,the enforcement of the judgment.
Bill in Equity to obtain reliefagainst judgment at law. to bill. H. e. Sli:Jan, forcol)Jplainallt. G.W. Haze1J.Qn, for defendant.
DYER, J. The defendant in this bill recovered a judgment against the complainalH in the circuit court of the States for the Northdistrict of Illinois in.ap. a.ction of trespass. The suit in which the judgmentwas rendered grew out of the foreclosure by the complainant, Cotzhauaen, of certain chattel mortgages which he held upon property in the pOBsession of the defendant; and the complainant was adjudged a trespasser in enforcing· a foreclosure as to certain articles of property which it was claimed by the plaintiff in that suit were not covered by the Suit at law being brought upon the judgment in this court, the complainant files the present bill, on the equity side of the .court, to enjoin the prosecution of the action, on the ground that the
judgment was obtained byfrag<;l;The bill is d,emurred to for want of 'question is, <l9ea; the ,bill present a case entitling the [email protected]
COTZHAUSEN V. KERTING.
l;lUit wal!l subsequently removed to the United States circuit court for the Northern district of Illinois, and, being at issue in said court, and coming on to be tried before a jury, in that, behalf duly taken and sworn between the paTties, and upon the'trial of said issue,the said Fran)t Kerting did then appear and tender himself, and was received to give evidence on behalf of himself,and,did then take his corporal oath, and was duly sworn; and then, and upon the trial of said issue, it became and was a material question in the same whethep; after the foreclosure sale, the said Kerting made a demand upon this defendant fur any of the property which he thus individually claimed outside ,of the ,mortgaged chattels, and whether he fairly disclosed to your orator his claim of title thereto; and thereupon the said Kerting, haVing been so sworn as aforesaid, devising and wickedly intending to cause and procure a verdict ,to pass for him', did then and there falsely, willfully, and corruptly depose,and give evidence in substance and to the effect, that he made demand for said property because not embraced in said mortgages, and was refused possessioD thereof; and whereas, in truth and in fact, he never made any such demllintkior' in any' other manner laid claims to any of the property above nor ever disclosed his right to any portion thereof. except by CODreferred testingatid impeaching the foreclosure sale gen,erally. JJ ·
If the question whether the plaintiff in the Illinois suit claimed and demanded the property iuq,uestion before suit brought, was a,material one on the trial of the case, then it simply constituted, one altha facts in issue qOll(;erning which testify, and upon ,which add,uce other ,aB 'they may have had at hand hearing upon it. The whole gist of the is that KertiJ;lg swore faJsely that he tnade .a deU}and for the property., That is all there is of it:· .In other words, it would seem that hetestinedon the' trial that he made a demand. It alleged that in so testifying he committed perjury. ItIPust.be assumedihat.t:he complainant; if the question was a material one, met it with testimony on his part. Atleast, it was his duty io do so', just as it was to meet any other issuable fact in the case. It was then the,ordinary case, so far as the bill shows, of a contest between of fact, trial before court and jury, where presumptively both' parties had all equal footing, and each had an equal oppOrtunityto present· his side of the case,· and where the jury, after considering the evidence, accepted. the claim' of one party rather than that of the other. ' To this point, that is all there is of the case made- by the bill. It is not a sufficient ground for relief in equity against a judgment at law that one of the parties, or that some witness, or many witnesses, upon a material question of fact in issue. If, upon such grounds, a court of chancery were to reopen issues settled by verdict of ajury, and thus relieve suitors from judgments recovered at law, it is difficult. to see where litigation would stop, and what stability there would: be in the adjudications of Courts of law . Moreover, if the complainant were able to show, as he would have to do if this bill wereinaintaine?J. t4at perjured testimony was given on the trial of the suit at law, 'and such testimony caused a verdict· against him, then his form. of reUefWllS in a motion for a neW trial, addtessetlto the trial court. It :Wllo8 matter that came directly withip the prp,yince, Of that court; for, acOOJ;ding totlle allegations of the 14l1t1:hequestion involvedw!ls