Hinckley v. Miles

Headnote

Judgment — when-collection of restrained Veeause of fraudulent representations as to the parpóse of the action.

Appeal from a judgment in favor of the plaintiff, entered upon. the trial of this action by the court without a jury.

This action was brought to enjoin the defendant permanently from enforcing a certain judgment recovered by him in a Justice’s Court, except for a part of the same, on the ground that it was obtained by a fraud practiced on the present plaintiff. The facts of the case, as found by the court are, that the defendant held two notes against the plaintiff one on which there was due twenty-six dollars, and the other, originally given for one hundred dollars to one Shoemaker, which had been fully paid, as the defendant knew. That the defendant gave the twenty-six dollar note to a constable, directing him to procure a summons in Justice’s Court, and, also, to present this note to the present plaintiff and to tell him that the suit was commenced only to.collect said note, and for no other purpose; that the constable did so; that the plaintiff did not have the money to pay the note, and the constable served the summons; that the plaintiff trusted to their statement, and did not appear; that in his absence, the defendant on the return day of the summons took judgment against him on both of the notes; that the plaintiff did not discover this fact until his time for appeal had been barred.

The court at General Term, said: “ The case seems to be one of bare, unqualified trick and fraud; the use of legal proceedings to perpetuate a piece of knavery, If the defendant was not ashamed to practice such a fraud, he ought at least to have been ashamed to defend it, after it was discovered, and after the defrauded party was seeking redress. That he should have been willing to give publicity to his wrong doing by appealing from •this most righteous judgment is surprising.”

The judgment should be affirmed, with costs;