Opinion
No. 23504
January 23, 1934. Rehearing Denied May 8, 1934.
(Syllabus.)
1. Judgment — Fraud Justifying Vacation of Judgment — False Evidence Alone Insufficient Ground.
False evidence or perjury alone, relative to an issue tried, is not sufficient ground for vacating or setting aside a judgment; the fraud which will authorize the court to vacate a judgment must be extrinsic or collateral to the issues tried in the cause wherein the judgment was rendered; it must be such fraud as to prevent the other from having a trial of the issues.
2. Same — Demurrer to Petition to Vacate Judgment Properly Sustained.
It is not error to sustain a demurrer to a petition to vacate a judgment based on the ground of fraud in the procuring thereof when the allegations of the petition show that the fraud consists of false testimony wrongfully procured by a party to the action.
Appeal from District Court, Osage County; Jesso J. Worten, Judge.
Action by the National Aid Life Association against Van D. Morgan. Demurrer to petition of plaintiff to vacate adverse judgment sustained, and plaintiff appeals. Affirmed.
Snyder, Owen Lybrand, for plaintiff in error.
Kelly Brown, for defendant in error.
This is an appeal from a judgment of the district court of Osage county sustaining a demurrer to a petition filed by the plaintiff in error to vacate a judgment theretofore rendered against it by that court.
The basis of the claim for the relief prayed for is that in the former action the defendant had prevailed upon a witness to testify falsely "by the payment of money and by making of promises of future reward." In support thereof, El Reno Mutual Fire Ins. Co. v. Sutton, 41 Okla. 297, 137 P. 700, is cited and relied on.
The facts pleaded are more like the facts shown by the record in the case Of Thigpen v. Deutsch et al., 66 Okla. 19, 166 P. 901. The rule therein stated is applicable and is applied herein.
We are not unmindful of the force of the argument presented in support of the contention made. However, the record herein shows why such a contention should not be sustained. Here a witness, under oath, in the trial of a cause, testified to certain facts. At a later date, that witness, under oath, during the taking of depositions, testified to different facts, that his former testimony was false, and that he was induced to so testify by promise of reward. Possibly at a date in the future he might testify that his first testimony was true and his second false. As stated in Thigpen v. Deutsch et al., supra:
"The law does not permit the parties, by charges and countercharges of perjury and false swearing, to prolong their litigation indefinitely."
The record shows an attempt to procure a retrial of the issue tried in the former trial, to wit, the age of the applicant for insurance.
We have fully analyzed the authorities in Vacuum Oil Co. v. Brett, 150 Okla. 153, 300 P. 632, and we decline to depart from the rule therein stated.
The judgment of the trial court is affirmed.
RILEY, O. J., CULLISON, V. C. J., and McNEILL, OSBORN, and BAYLESS, JJ., concur.