McKechney v. City of Chicago, 194 Ill. App. 539 (1915)

Oct. 5, 1915 · Illinois Appellate Court · Gen. No. 19,879
194 Ill. App. 539
John McKechney and John McKechney, Jr., surviving partners of Weir, McKechney & Company, Appellants, v. City of Chicago, Appellee

John McKechney and John McKechney, Jr., surviving partners of Weir, McKechney & Company, Appellants, v. City of Chicago, Appellee.

Gen. No. 19,879.

(Not to he reported in full.)

Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honobe, Judge, presiding.

Heard in this court at the October term, 1913.

Affirmed.

Opinion filed October 5, 1915.

Statement of the Case.

Action by John McKechney and John McKechney, Jr., as surviving partners of the firm of ;Weir, McKechney & Company, plaintiffs, against the City of Chicago, defendant, in the Circuit Court of Cook county.

The action was a bill to vacate a judgment in favor of plaintiffs for one dollar and costs, and for a new trial, on the ground that the judgment was procured by fraud, and by the perjured testimony of defendant’s witnesses. The cause of action on which the judgment complained of was entered was the construction, by plaintiffs’ firm, of a tunnel in the city of Chicago, known as the “Northwest Land Tunnel,” under contracts with defendant. Previous litigation in the case is found in the cases of City of Chicago v. McKechney, 91 Ill. App. 442, rev’d 205 Ill. 372; McKechney v. City of Chicago, 160 Ill App. 544.

The main issue at the trial resulting in the judgment complained of was the character and kind of earth excavated in constructing the tunnel. The bill alleged want of knowledge at the time of trial of the fraud and perjured testimony, and that no access could be had by plaintiffs to the tunnel to procure evidence for use at the trial. It also appeared on the face of the bill that plaintiffs had full knowledge of the fraud and perjured testimony complained of, more than two and one-half years before the bill was filed, and further, that *540the time allowed for suing out a writ of error had expired before such filing.

Abstract of the Decision.

1. Equity, § 78 * —when laches shown. Plaintiffs who fail to use reasonable diligence to bring their bill after knowledge of the facts on which they base their claim to relief are guilty of laches.

2. Judgment, § 339 * —when hill to impeach judgment hatred hy laches. In a bill to impeach a judgment for fraud and perjured testimony, where plaintiffs did not file their bill until more than two and one-half years after knowledge of the facts, held that plaintiffs were guilty of laches.

3. Equity, § 95 * —hoio laches may he taken advantage of. Laches appearing on the face of the bill may be taken advantage of by either general or special demurrer, and a demurrer to such a bill is properly sustained.

4. Judgment, § 339 * —what excuse for laches in impeaching judgment required. Want of diligence in bringing a bill to impeach a judgment for fraud and perjured testimony will not be excused *541except for the most cogent and imperative reasons, which must he clearly averred in the bill.

*540It was nowhere alleged that any attempts were made to procure evidence from those engaged in constructing the tunnel, or that city officials were summoned as witnesses, or that process was asked to compel the production of city documents. It was not alleged that any examination of the earth was made by competent persons, after it was hoisted to the surface, nor did any matter appear in the bill in excuse of the delay in filing the bill. The defendant demurred generally, and the demurrer was sustained. From a decree dismissing the bill for want of equity, plaintiffs appeal.

Adams, Crews, Bobb & Westcott, for appellants; Madge Hartman, of counsel.

William H. Sexton, for appellee; Bryan T. Craig, of counsel.

Mr. Justice Holdom

delivered the opinion of the court.

*5415. Judgment, § 339 * —when bill to impeach barred by lapse of time. A court of equity will not entertain a bill to impeach a judgment for fraud after the expiration of the time allowed by statute for suing out a writ of error.

6. Judgment, § 343 * —what bill to impeach must show to rebut claim of laches. In a bill to impeach a judgment for fraud and perjured testimony, mere disclaimer of knowledge of the fraud and perjured testimony is not enough to show diligence for the reason that the bill must allege reasonable efforts to procure knowledge, which efforts were abortive.

7. Judgment, § 343 * —when bill to impeach for perjured testimony insufficient. In a bill to impeach a judgment on the ground that it was obtained by perjured testimony, where the main question at the trial on which the judgment was rendered was the character and kind of soil excavated in constructing a tunnel, an allegation that before the time of the trial parties complaining of the judgment could not obtain access to the tunnel to obtain evidence with which to overcome the perjured testimony complained of is a mere conclusion, founded on no particular averment of facts supporting it, and has no tendency to excuse an apparent want of diligence to secure such evidence, as it is clear that in construction of a tunnel many persons must have been engaged, from whom evidence could have been obtained by the use of due diligence, and because the earth excavated must have been raised to the surface where an examination of its character could have been made by competent persons.

8. Judgment, § 312 * —when diligence not shown to sustain bill to impeach. In a bill to impeach a judgment on the ground that it was obtained by perjured testimony, failure of parties complaining of the judgment to take advantage, in time for use at the trial, of means readily available to secure evidence with which to overcome the perjured testimony complained of, and which means would probably have procured the necessary testimony, is such a want of due diligence as will prevent a court of equity from entertaining a bill to set aside the judgment, and grant a new trial.

9. Judgment, § 328 * —vjhen perjured testimony not ground for equitable interference. The fact that a judgment is obtained by means of perjured testimony is not sufficient ground either for vacating the judgment or for restraining its enforcement.

10. Judgment, § 321 * —what necessary to warrant equitable interference with. A court of equity will entertain a bill to impeach, for fraud, a judgment between the same parties only where the fraud complained of is extrinsic or collateral.

*54211. Judgment, § 321 * —what constitutes collateral fraud on Mil to impeach. Extrinsic or collateral fraud, as applied to a bill to impeach a judgment for fraud, consists in fraudulent acts which, in fact, prevent the unsuccessful party from having a trial.

12. Judgment, § 328 * —when duty of party to guard against perjured testimony. A party must be prepared to meet and expose perjured testimony which is offered at the trial.

13. Judgment, § 321 * —what is intrinsic fraud on Mil to impeach. Intrinsic fraud, as applied to a bill to impeach a judgment for fraud, is fraud which is confined to matters in evidence at the trial resulting in the judgment complained of.

14. Judgment, § 321 * —when judgment not impeached in equity for intrinsic fraud. A court of equity will not entertain a bill to impeach, for fraud, a judgment between the same parties where the fraud complained of is intrinsic.