Thompson v. Caddo County Bank

Opinion of the court by Pancoast, J.:

In this Territory proceedings to vacate, a judgment on the ground of fraud practiced by the successful party must be by'petition, verified by affidavit, setting forth the judgment sought to be vacated, the -grounds there *617 for, and tbe defense to the action, if the party applying was defendant. (Sec. 564 art.

22, cháp. 66, Wilson’s Statutes, 1903.) Under the section of the statute referred to, a motion is not the proper remedy by which to seek vacation of a judgment alleged to have been obtained by the fraud of the successful party, that method by motion, being applicable only to certain other grounds specified in the statute; hence this court cannot consider so much of the motion in the case before us as seeks, upon the-ground of fraud, the vacation of the judgment rendered.

Nor in this case is the petition to vacate sufficient to meet the requirements of the statute mentioned, and the construction which this court has heretofore placed upon it. While the petition is properly verified, sets forth the judgment sought to be vacated, pleads the facts constituting the alleged fraud, and sets out that defendants have a just and meritorious defense to the cause of action in the replevin suit, yet the facts from which the trial court might or could have determined that such a defense existed are nowhere pleaded, the only attempt to meet the demand of the statute in this particular being a general denial, unverified, attached as an exhibit to the petition to vacate, and this we think is insufficient. The petition must fully state the facts constituting the defense, and unless the facts stated show an existing valid and meritorras defense, the petition is fatally defective.

(Provino v. Lovi, 6 Okla., 94 , 50 Pac. 81 ;

Mulvaney v. Lovejoy, 37 Kans 305, 15 Pac. 181 .)

A general denial even though verified, cannot serve the, purpose intended by the statute; it can give no information to the court, nor aid it in determining whether or not there exists in fact a valid and meritorious defense to plaintiffs *618 cause of action, nor .will it take the place of a full and complete statement of those facts sufficient to constitute such defense, nor obviate the necessity of pleading them. We think therefore, the trial court committed no error in sustaining the demurrer to the petition to vacate the judgment below:

Recurring to that part of the motion to vacate which attacks the validity of the judgment rendered by the probate court, on the ground that the allegations of the petition and affidavit in replevin are insufficient to sustain it, it is contended by plaintiffs in error that the insufficiency of the petition in the replevin action consists in this: First, that there is no specific allegation therein that the plaintiff was entitled to the possession of the property at the time of the commencement of the action; second, that there is no allegation in the petition that plaintiff bad any interest in the property at the time of the commencement of the action; and third, that if any ownership in plaintiff did exist, that it was a special ownership, and that the nature and circumstances of such a special interest or ownership are not alleged in the petition.

It may be conceded the petition in the replevin action does not generally allege that plaintiff is the owner and entitled to the immediate possession of the property sought to be recovered, but it does state the particular facts which entitle it to such possession and this we think is sufficient, upon a motion of this nature, as 'it specially pleads the plaintiff’s title, and the specific facts to which the court will look in determining the. plaintiff’s right to recover.

(Gage v. Wayland, 67 Wis. 566 ; 31 N. W. 108 ;

Visher v. Smith, 91 Cal. 260 ; 27 Pac. 650 ;

Reynolds v. Copeland, 71 Ind. 422 ; Shinn on Replevin, par. 442.)

*619 As far as the third contention of plaintiffs in error is concerned, it may be true that the special ownership of the plaintiff probably should have been alleged with more care in the petition in the action of replevin. The petition, in that regard, pleads the title of plaintiff to be that of mortgagee, under a chattel mortgage, and states that deeming itself insecure, it took possession of the property, but contains no further particular allegation of the nature of the special ownership.

However a trial court might be justified in regarding a pleading such as this on demurrer to petition, yet, under the circumstances of this case, the neglect and delay of plaintiffs in error, this court will not, upon a motion of the kind under consideration, exact that strict particularity of pleading special ownership that might otherwise be required by a trial court, upon demurrer.

In our opiniop, the petition was sufficient to sustain the judgment rendered; and, being sufficient, the probate court committed no error in rendering the judgment, no^ in overruling the motion to vacate the same.

The judgment of the probate court is therefore affirmed.

All the Justices concurring.