La Fitte v. Salisbury

Mr. Justice Gtabíbert

delivered the opinion of the court:

It will be noticed from the foregoing synopsis of the complaint that plaintiff does not allege that she was not duly notified of the proceedings installed by Salisbury in the district court of Pueblo county, which finally culminated in a judgment reviving the Pups judgment in his name as the assignee of Pups. True, she avers that she did not learn of the revival of the judgment, and that no assignment of the original had been made to Salisbury until in October, 1903, but that is not equivalent to stating that no process was issued and served upon her in the proceeding instituted by Salisbury. She evades this fact, whatever it may be. Necessarily, she knows whether or not she was served with process in that proceeding; consequently, the averments in her complaint on this subject must be positive and unequivocal, and not evasive. She seeks, however, to avoid the judgment upon the ground that in truth and in fact, Salisbury was not such assignee at the time he instituted proceedings and obtained a revival of the judgment against her in his name. The complaint is insufficient to state a cause of action in so far as it attempts to attack the revival of the judgment upon this ground. One of the issues involved in the proceeding instituted by Salisbury was whether or not he was the assignee of the Pups judgment. — Hughes v. Brewer, 7 Colo. 583 . That was determined by the court in his favor. The effect of a judgment reviving á judgment as an adjudication of all questions necessarily involved does not differ from that of *253 other judgments. In such proceedings the judgment debtor must interpose such defenses as he may have, or they will be forever barred by the judgment of revivor. — Freeman on Judgments, §448. There is no averment in the complaint from which it is made to appear that plaintiff was prevented from presenting to the district court of Pueblo county the claim . which she now asserts, that Salisbury was not, in fact, the assignee of the Eups judgment. The frauds which will vitiate a judgment between the same parties rendered by a court of competent jurisdiction are those which are extrinsic or collateral to the matters tried. That is to say, the cases where relief from a judgment can be granted upon the ground of fraud are those where, by fraud or deception practiced by the prevailing parly the unsuccessful party has been prevented from fully exhibiting his case, without fault on his part. — Venner v. Denver Union Water Co., 40 Colo. 212 ; Boldenweck v. Bullis, 40 Colo. 253 ; United States v. Throckmorton, 98 U. S. 61 .

Such is the law as long since firmly established, in order that repeated litigation between the same parties in regard to the same subject of controversy may be prevented.

The averment that no credit was given upon the judgment for the amount realized from the sale of the note levied upon, does not state facts which entitle plaintiff to relief, although she prays that, in the event the judgment is held valid, she have a decree allowing her credit for the value of the note. She would only be entitled to credit for such net sum as was realized from the sale, and this would appear from the return of the sheriff. There is no statement to the effect that the sheriff’s return does not exhibit the amount realized on this sale. In this connection we note that it does not appear from the averments of her complaint that the amounts real *254 ized from the two execution sales made at the instance of Salisbury were in excess of the judgment and costs. It is also proper to notice that she does not state in her complaint that Salisbury is making any claim against her on account of his judgment, which has been satisfied to the extent of the net sums realized on his execution sales of her property:

Ordinarily, inadequacy of price paid is not sufficient cause for setting aside a'judicial sale. — Con way v. John, 14 Colo. 30 . Generally, in addition, it must appear that there were such irregularities in connection with the sale, or such fraud practiced, as tended to prevent the property levied upon from being sold at a fairly adequate price. — 17 Cyc. 1276. Nothing of this character appears in plaintiff’s complaint. She relies entirely upon the alleged inadequacy of the price for which her real estate was sold, and in the absence of a charge of irregularities affecting her substantial rights, or of fraud, she is not entitled to have the sale vacated, except upon a tender of the amount for which the sale was made. — 17 Cyc. 1283. “He who asks equity must do equity.”

The attempted release of the judgment by Eups does not avail the plaintiff. It is true she alleges in her complaint that no assignment of the judgment was ever made by him to the defendant Salisbury, but the facts upon which she relies in support of this contention will not permit her to raise that question. The judgment of the district court when the original judgment was revived settled that issue as between the plaintiff and defendant Salisbury in the absence of such averments of fraud as would permit her to now litigate it. She had notice of the assignment by Eups to Salisbury, and hence, the attempt of Eups to release it in favor of the plaintiff does not affect Salisbury’s rights in any way, or vest in her any cause of action against him. — 23 Cyc, 1425.

*255 Counsel for plaintiff has not called our attention to any propositions based upon the averments of the complaint which would entitle her to any relief whatever, and the judgment of the district court must, therefore, he affirmed, and it is so ordered.

Judgment affirmed.

Chief Justice Steele and Mr. Justice Campbell concur. _ _