Bibend v. Kreutz

Citations

• 20 Cal. 109

Syllabus

<p>A party against whom an unjust judgment has been obtained through accident, mistake, or fraud, may, after the adjournment of the term at which judgment was rendered, and where no want of diligence is imputable to him in seeking relief, maintain an equitable action to set aside the judgment.</p> <p>The statutory remedy by motion before the Court rendering the judgment is only available during the term at which it is rendered, and to hold this remedy exclusive would often result in a denial of the most obvious justice.</p> <p>The assistance of equity to set aside a judgment cannot be invoked in a distinct action, so long as the remedy by motion in the original case exists.</p> <p>A complaint in an action to set aside a judgment, which contains no averment showing that relief could not have been obtained on motion, may be demurrable; but if defendant fails to demur, and answers on the merits, and the facts supplying the defect appear in the record, the objection is waived.</p> <p>The Yreka Water Company execute to B. and others a mortgage on its property, to secure in part debts severally due from the company to the different mortgagees, and in part a debt due from the company to K., not named in the $ mortgage. A new company is afterwards incorporated to take the place of the Yreka Water Company, and an arrangement is made between the mortgagees und the companies, that when nine-tenths in amount of the debts secured by the mortgage shall be surrendered on a fixed basis in exchange for stock in the new company, the mortgage shall be canceled and the property be owned by the new company free of the incumbrance—some of the mortgagees, B. among the number, receive stock to the amount of their debts, and conditionally assign their demands; bnt the mortgage is not canceled or assigned, nor do any of the mortgagees receive anything on account of the debt due to K.: tldd, that neither B. nor any of the mortgagees have by these acts made themselves liable to K. for any port