¶1I concur. It appears that Dunlap was, without any fault of his own, deprived of the opportunity of interposing a perfect defense to the action of Steere v. Dunlap, and it is alleged in the complaint herein, and found by the court, not only that the allegations of the complaint'in the former action were untrue, but that Steere at the time knew they were false. The evidence is sufficient to sustain this finding, at least so far as the complaint in the former action counted upon a title by prescription; but there is nothing to show that Steere in fact knew that his tax title *350was void, though such knowledge is by the law imputed to him. The case, then, presents these features: Steere sues Dunlap upon a claim which he knows to be false. He obtains an order for publication of summons, based upon the two grounds that Dunlap has departed from the state, and cannot, after due diligence, be found within the state. His affidavit is in itself sufficient to justify a finding that these grounds exist; and a judgment entered upon Dunlap’s default, after publication of summons, is not void, and cannot be set aside upon motion, unless the motion is made within a year. (Code Civ. Proc., sec. 473.) Can it, then, be annulled by suit in equity after the year? I think it clear, on principle, that in a case where no rights of innocent third parties are involved, a judgment so obtained ought to be set aside, upon the ground that it was fraudulently obtained; the fraud consisting in taking a default judgment upon a claim made in bad faith against a defendant, who, without any fault on his part, is prevented from interposing a perfect defense. The findings of the superior court, therefore, which are supported by the evidence, are themselves sufficient to support the judgment; and the order denying defendant’s motion for a new trial should be affirmed.
92 Cal. 344
Dunlap v. Steere
Decided December 14, 1891
California Supreme Court · decided 1891-12-14
<p>Judgment by Default — Quieting Title — Service of "Summons by Publication — Fraud — Belief in Equity. —Equity will set aside a judgment obtained by default, upon a service of summons by publication in an action to quiet title, though more than one year has elapsed from the rendition of the judgment, where it appears that the plaintiff in equity had no knowledge of the pendency of the, action or of the rendition of the judgment until more than one year after its date, and that the plaintiff in the original action knew that the allegations of his complaint were false, and made a false affidavit that he had a cause of action, in order to secure a service of the summons by publication.</p> <p>Id.—Grounds for Equitable Relief — Unconscionable Advantage.— In all cases where, by accident, or mistake, or fraud, or otherwise, a party has an unfair advantage in proceedings in a court of law, which must make that court an instrument of injustice, and it is therefore against conscience that he should use that advantage, equity will interfere, and restrain him from using the advantage improperly gained.</p> <p>Id.—Fraud upon Court — False ex Parte Affidavit.—An affidavit for publication of summons is always ex parte; and if such affidavit falsely states that plaintiff has a cause of action, when he knows the contrary, it operates as a fraud upon the court; and when the judgment which rests upon it is itself unconscionable, and was obtained without the knowledge of the defendant therein, it should be set aside.</p> <p>Id.—Res Ad judicata — Fraud as to Merits.—The rule that fraud relating to the merits of a controversy is concluded by the judgment, and is not ground for setting aside the judgment, has no application to a case where the plaintiff in equity had no knowledge of the pendency of the action, and could not have protected his rights therein, and his failure to defend was not a negligent omission on his part.</p>
Good law ✅— No negative treatment on recordhow we know
Decided 1891-12-14
How this case has been cited
Cited by 37 later decisions — most recently April 2017 · most notably Olivera v. Grace (1942), Parsons v. Weis (1904)
2 federal appellate · 33 state decisions
Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.
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