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
one of fact, material to the issue.. It was therefore legitimately and strictly, ,the subject of review on motion for a new trial. But the bill in its stating part further proceeds as follows: "Furthermore, then and there. upon the trial of said issue. your orator. among other things, claimed title in hilllself under and by virtue of a sheriff's sale on judgmeritand execution; in the case of The Butler Paper Company v. Frank Ke'rting and the Chicago Lithographing Company, all of which dUly appeared from the records and files of the court wherein said jndg;ment was rendered; and it became and was, under the rulings of the presiding judge, a material question on said issue and trial whether this execution levy prior to the sale was abandoned by the judgment creditor; and whether said sale thus regularlyappeating. ofreoord was fictitious or bona jlde. and consequently whether the title 'of said Kerting. if any he ever had, ·to the property above referred .to· had become: extil1guished. by such sale: and thereupon the said Kerting, devising and wiekedlyintetlding to cause and procure a verdict to pass for hitn,:didthenand there, by his own corporal oath, and that of the president· of the jUdgment creditor;. conspiring and· conniving with him for that purpose, falsely, willfuJly,andicorruptlydepose and give evidence. and thus made it to appear in substance and effect, that said levy was withdrawn and that, no sale an ,execution was' in fact made, and no money as }m;gJp1ited by:the record. and that. the pretended ,proceedings were tmt\:J, an,din .thereturn. of the as to his levy and. sale WaB,tr,ue. in every parti<luJar and in conformity to the facts as theyoccurte<l and transpired at the, th;ne;,so that all rJght, title, and in.terest of ,said F'rank Ketting. any interest he' ever had; 'Were fully extingUished by such sale,' and, acquired by your orator:" What stated of preceding allegations of the bill applies with equal force t() this. If it was question, on the trial of the suit at law whether, the execution levJ:, ,referred to, which was one of the sources of complainant's title, wasabandoried by the Butler Paper Company, and whether was fictitious or bona fide, then the was compelled .t()meet that question with testimony, as an issue of fact in the case. The plaintiff in the suit at law, it seems, attacked the sale. It therefore devolved'upon the defendant in the case to defend and maintain the, sale. If his evidence was insufficient, or was overbornl;l by testimony him, that is not ground for relief in equity. ,'rhe issue was one involying title. Both had to meet it; and, as stated, even if false testimony was aMuced on one side in maintaiBing the issue, that does not give the complainant a footing in equity to:avoid the verdict and judgment. Again, this was a matter had been reviewable by:tt!e trial court. If it were shown done tq one side by false f1:o/earing on the part of the other, or that the defeated party ba.r!, bElen surprised, and therefore had not been able to mee,t such: fa}.se tef1timony, it was .within the power of the. court to set and grant a new trial. aside The bill fl,lrtlwrproceeds: , "And at the time of foreclosnre of said chatfo,r severalmonths;tbereafter, your orator bad no possession tel mortgage. or control. 0,1' actual or.'constructive; over the greater portion of the goods and cbattelssafq.,to have been taken and carried away by your orator;tlJat'tbe color.gririder; 'varnish-machine, paper-cutter and labelS, and