Brown v. County of Buena Vista, 95 U.S. 157

Brown v. County of Buena Vista.

1. A court of equity will not relieve against a judgment at law where the party seeking its aid has been guilty of laches or fault.

2. Whether the time which has elapsed since the discovery of the fraud, set up as tlie ground of relief, be sufficient to bar the remedy, is a question to be determined by the sound discretion of the court.

Appeal from the Circuit Court of the United States for the District of Iowa.

The facts are stated in the opinion of the court.

Mr. George Gr. Wright for the appellant.

Mr. Justice Swayne delivered the opinion of the court. This is an appeal in equity. The appellee filed the bill, e decree of the court below was against the appellant.

n this court, the grounds relied upon to sustain the decree are, — r th^^ judgmeut sought to be enjoined was procured by e raud and conspiracy of the appellants, Jamison the county C ’ an^ Moore the county treasurer ; ra ju^oment was founded in a large part upon war-of 11 ° Coun^’ ^8^ue<l pursuant to a fraudulent conspiracy forged. Par^es’ an^ in part upon warrants which were

to b P3^11161^8 uPon the judgment were procured and e fraudulent misrepresentations of Langdon

Brown^ through their attorney.

On the 6th of September, 1865, Jamison acknowledged service of mesne process in the case in which the judgment was recovered. It is not denied that the acknowledgment rendered the service sufficient in point of law, and warranted the court in giving the judgment, if the fraud and conspiracy charged had no existence. The allegations of the bill casting the imputation are explicitly met and denied by the answers. This put the burden of establishing them upon the complainant. There is no proof whatever in the record upon the subject.

The judgment was rendered by default in the Circuit Court of the United States for the District of Iowa, on the 25th of October, 1865, in favor of Langdon, against the county, for $6,259.32. It was founded upon county warrants. Five of them were for the sum of $1,000 each. The residue were for smaller sums, amounting in the aggregate to less than $500. There is proof tending to show such warrants had been issued fraudulently to a very large amount, and there is some proof that the name of William S. Lee upon some of the smaller warrants included in the judgment is not in his handwriting. By whom it was written is not shown.

It appears, also, that warrant No. 86, for $1,000, embraced in the judgment, was subsequently abstracted from the cler s office. When the testimony was taken, it was in the hands o a person in Vermont. As it was clearly thus put in circula tion when overdue, the county can sustain no injury from i • A transcript of the judgment, pursuant to the law of Iowa, was filed in the clerk’s office of the District Court for the county on the 29th of January, 1866. Moore and Jamison left t e county in October, 186T6. After their departure, the shentt, with process, made search for the record of the proceedings the supervisors, and for the county seal. Neither was o When last heard from, Jamison was reported to have die. Texas. Moore was said to be living somewhere in the in eno of New York. His testimony was not taken by either par y.

That fraud was perpetrated as to the issuing of warra Jamison is very probable, and it may be that it exten warrants here in question. thing

But however this may be, there is no proo o an^ wrong on the part of Brown or Langdon. Brown w

ined, cross-examined, and re-examined, as a witness. He testifies, that, having sent the transcript of the judgment to the county to be filed, and getting no answer, he went there to see that it was done. This brought him into contact with Jamison, and he thinks he saw a man of the name of Moore. He says he never saw them at any other time, and never had any other communication with either of them. There is no other evidence upon the subject.

The counsel of Brown appeared before the supervisors on the 5th of September, 1870, and asked that action be taken for the payment of the judgment, and stated that it was rendered upon warrants of the county.

The supervisors thereupon imposed a tax, accordingly, for the year 1870. A like tax was imposed on the 5th of September, 1871, for that year. Under these assessments there was paid upon the judgment, on the 20th of June, 1871, the sum of $1,603.01, and on the 15th of May, 1872, SI,282.60. There is still in the hands of the county treasurer, arising from these assessments, the further sum of $1,892.45, applicable in the same way. In this connection, also, we find nothing in the case affording the slightest ground for any imputation upon t e counsel who appeared before the supervisors in behalf of Brown, or upon Brown himself.

The power of a court of equity to relieve against a judgment, upon the ground of fraud in a proceeding had directly for that purpose, is well settled.

The power extends also to cases of accident and mistake, such relief is never given upon any ground of which the nip ainant, with proper care and diligence, could have availed . , e *n proceeding at law. In all such cases he must be out fault or negligence. If he be not within this category, power invoked will refuse to interfere, and will leave the is k W ete them. Laches, as well as positive fault, Ch* SU<± reHef’ Duncan v- Ly°n^ 3 Johns- (N. Y.) Storv P t In8urance Go- v. Hodgson, 7 Cranch, 332; prp ’ q Ur’’ Sec^8' 894-896; Bigelow on Estoppel, 151;

On the contrary, upon the same day, they imposed a tax for the payment of the judgment; and on the same day, one year later, the second levy was ordered for the same purpose. It appears they retained counsel at their session, in June, 1871, and, that upon searching in the proper clerk’s office at Des Moines, the warrants in question could not be found. The search was made several times, with the same result. The counsel apprised the supervisors of the fact, and advised them that nothing could be done without the warrants. When this announcement was made does not appear; but the evidence shows that in the same month of June in which he was retained the first payment was made upon the judgment. The second payment was made a year later. The warrants were found m the proper office in the fall of 1872, partly through the efforts of the counsel of Brown, who thereupon notified the counsel of the supervisors, and the warrants were placed in the hands of the latter. The bill was not filed until at least half a year later.

The Statute of Limitations of Iowa of five years, perhaps, oes not apply, because the fraud, if it existed, was not known s ciently early. The statute could run only from the time of t e discovery. But a court of equity applies the rule of laches ac cording to its own ideas of right and justice. Every case is governed chiefly by its own circumstances. Whether the ti the negligence has subsisted is sufficient to make it effectua a question to be resolved by the sound discretion of the co Sullivan v. Portland $ Kennebec Railroad Co., 94 U. •

The facts in this connection to which we have adverte entitled to grave consideration. . . .,

“ Nothing can call forth ” — a court of equity •— ini'0 but conscience, good faith, and reasonable diligence, these are wanting, the court is passive, and does no

Laches and neglect are always discountenanced, and, therefore, from the beginning of this jurisdiction there was always a limitation of suits in this court.” Smith v. Clay, Amb. 645. See also Story, Eq. Jur., sect. 1520 a; 94 U. S., supra; Sample v. Barnes, 14 How. 70 ; Walker et al. v. Robbins et al., id. 584; Creates Administrator v. Simms, 5 id. 192; Bateman v. Willoe, 1 Sch. & Lef. 201; Murray v. Graham, 6 Paige (N. Y.), Ch. 622; Callaway v. Alexander, 8 Leigh (Va.), 114 ; Powell v. Stewart, 17 Ala. 719; Riddle v. Barker, 13 Cal. 295.

The law of laches, like the principle of the limitation of actions, was dictated by experience, and is founded in a salutary policy. The lapse of time carries with it the memory and life of witnesses, the muniments of evidence, and other means of proof. The rule which gives it the effect prescribed is necessary to the peace, repose, and welfare of society. A departure from it would open an inlet to the evils intended to be excluded.

Upon the whole case, we are of the opinion that the county is uot entitled to the relief sought.

Decree reversed and cause remanded, with directions to dismiss the bill.

Continental Improvement Company v. Stead. ’ Travellers upon a common highway which crosses a railroad upon the same

evel, and the railroad company running a train, have mutual and reciprocal uties and obligations; and, although the train has the right of way, the same degree of care and diligence in avoiding a collision is required from each of them.

That right does not, therefore, impose upon such a traveller the whole duty of

avoi ing a collision, but is accompanied with and conditioned upon the duty 3 T1T d 6 $'Ve ^Ue an^ warning of its approach.

w egree of diligence to be used on either side is such as a prudent man ou exercise under the circumstances of the case in endeavoring fairly to Perform his duty.

longs to the judge to exercise discretion as to the style and form in which

if hjXP.0Unds th® ^aw an<t comments upon the facts. His duty is discharged

> 8 ^ns^ruc^ons to the jury correctly state, although not in the ipsissima

0 counsel, the whole law applicable to the case.

RROB to the Circuit Court of the United States for the u«nct of Indiana.

VOL. V,.

The facts are'stated in the opinion of the court.

Submitted on printed arguments by Messrs. Hughes, 0 'Brien, $ Smiley for the plaintiff in error, and by Mr. J. J. Coomb», contra.

Mr. Justice Bradley delivered the opinion of the court.

This is a case of collision near the village of Lima, in La Grange County, Indiana, between a train of passenger cars of the plaintiff in error and the wagon of the defendant in error. The latter brought the action below to recover the damages done to himself and his wagon, and recovered a verdict. The present writ of error is brought to review the instructions given by the court to the jury on the trial. The case, as appears by the bill of exceptions, was substantially as follows: The collision occurred in a cut about five feet in depth, in which the wagon-road crossed the railroad on a level therewith nearly at right angles, descending to it on each side by an excavation. The train was a special one, coming from the north, and did not stop at the station, which was four hundred or five hundred feet north of the crossing, and none of the regular trains were due at that time, although special trains were occasionally run over the road. The plaintiff was going east, away from the village, following another wagon, and in approac ing the railroad track could not see a train coming from the north, by reason of the cut and intervening obstructions. There was evidence tending to show that the plaintiff, thong he looked to the southward (from which direction the next regular train was to come), did not look northwardly, that i wagon produced much noise as it moved over the frozen groun, that his hearing was somewhat impaired; and that he i n stop before attempting to cross the track; also, evidence te ing to show that the engineer in charge of the train use efforts in his power to stop it after he saw the plaintiff s on the track. The evidence was conflicting as to whether^ customary and proper signals were given by those in c ar8 the locomotive, and as to the rate of speed the tram was ning at the time, some witnesses testifying that it w unusual and improper rate, and others the contrary.

The judge refused to adopt the instructions framed by counsel, but charged, in effect, as folio ws: that both parties were bound to exercise such care as, under ordinary circumstances, would avoid danger; such care as men of common prudence and intelligence would ordinarily use under like circumstances; that the amount of care required depended on the risk of danger; that, where the view was obstructed so that parties crossing the railroad could not see an approaching train, the exercise of greater care and caution was required on both sides; as well on the part of those having the management of the train as of those crossing the railroad; that the former should approach the crossing at a less rate of speed, and use increased diligence to give warning of their approach; and, if the train was a special one, it was still more incumbent upon them in going t rough such a place to slacken their speed and sound the W istle and ring the bell, than if the train were running on regular time; and, on the other hand, that the party crossing a team should proceed- with more caution and circumpec ion than if the crossing were in an open country, and not nture upon the track without ascertaining that no train was

pproaching, or at least without using the means that common tra’ 61106 W°U^ dictate to ascertain such fact; but that, if a in were not a regular one, no train being due at the time,

This is the general scope of the charge; and we think it is in accordance with well-settled law and with good sense. If a railroad crosses a common road on the same level, those travelling on either have a legal right to pass over the point of crossing, and to require due care on the part of those travelling on the other, to avoid a collision. Of course, these mutual rights have respect to other relative rights subsisting between the parties. From the character and momentum of a railroad tram, and the requirements of public travel by means thereof, it cannot be expected that it shall stop and give precedence to an approaching wagon to make the crossing first: it is the duty of the wagon to wait for the train. The train has the preference and right of way. But it is bound to give due warning of its approach, so that the wagon may stop and allow it to pass, and to use every exertion to stop if the wagon is inevitably in the way. Such warning must be reasonable and timely. But what is reasonable and timely warning may depend on many circumstances. It cannot be such, if the speed of t ® train be so great as to render it unavailing. The explosion o a cannon may be said to be a warning of the coming shot, u the velocity of the latter generally outstrips the warning, speed of a train at a crossing should not be so great as to ren er unavailing the warning of its whistle and bell; and this cautio is especially applicable when their sound is obstructed by win and other noises, and when intervening objects prevent t o who are approaching the railroad from seeing a coming tra In such cases, if an unslackened speed is desirable, watc should be stationed at the crossing.

On the other hand, those who are crossing a railroa are bound to exercise ordinary care and diligence to asce whether a train is approaching. They have, indeed, t e gr est incentives to caution, for their lives are in imminen

if collision happen; and hence it will not be presumed, without evidence, that they do not exercise proper care in a particular case. But notwithstanding the hazard, the infirmity of the human mind in ordinary men is such that they often do manifest a degree of negligence and temerity entirely inconsistent with the care and prudence which is required of them, — such, namely, as an ordinarily prudent man would exercise under the circumstances. When such is the case, they cannot obtain reparation for their injuries, even though the railroad company be in fault. They are the authors of their own misfortune. These propositions are so indisputable, that they need no reference to authorities to support them. We think the judge was perfectly right, therefore, in holding that the obligations, rights, and duties of railroads and travellers upon intersecting highways are mutual and reciprocal, and that no greater degree of care is required of the one than of the other. For, conceding that the railway tram has the right of precedence of crossing, the parties are still on equal terms as to the exercise of care and diligence in regard to their relative duties. The right of precedence referred to does not impose upon the wagon the whole duty of avoiding a collision. It is accompanied with, and conditioned upon, the uty of the train to give due and timely warning of approach. The duty of the wagon to yield precedence is based upon this condition. Both parties are charged with the mutual duty o keeping a careful lookout for danger; and the degree of Ugence to be exercised on either side is such as a prudent man would exercise under the circumstances of the case in eneavoting fairly to perform his duty. The charge of the ]u ge was in substantial accordance with these views.

e mistake of the defendant’s counsel consists in seeking impose upon the wagon too exclusively the duty of avoiding in thS10n, aU^ re^eve too entirely from responsibility e matter. Railway companies cannot expect this immunity ong as their tracks cross the highways of the country upon the leveb The people have the same right to travel on or mary highways as the railway companies have to run trams on the railroads.

An examination of some of the principal instructions asked for by the defendant’s counsel will furnish an illustration of the propriety of these views. The court was asked to instruct the jury as follows: —

“ The uncontradicted testimony in this case shows that the plaintiff was acquainted with the character of this crossing; that 0 had frequently travelled it, and on some previous occasions ha stopped to look and listen before going upon the track; that upon this occasion he went with his team and wagon upon the track wit out taking any precaution to ascertain whether a train wras coming from the north or not; that he did not even turn his face nort - ward along the track in the direction from which the train wa coming until it was too late for him to stop or turn back; t his wagon was making considerable noise as it moved over frozen ground; that his hearing was to some extent impair© , he did not stop to listen before going upon the track.

“ Upon this state of facts the plaintiff is chargeable wit s negligence contributing to the accident as deprives him of any r. of action.”

Now, although the case may have been so clear of °^er dence than that stated in the proposed instruction, as t a judge (had he seen fit) might have adopted it as a sta e

of the ultimate facts, yet he was not bound to do so, but was entirely justifiable in stating the law, as he did, in a more general form, namely: —

“It is left as a question of fact for you [the jury] to say whether he [the plaintiff] was guilty of carelessness from the evidence. He was required to exercise that degree of prudence, care, and caution incumbent upon a person possessing ordinary reason and intelligence under the special circumstances of the case, having regard to the particular character of the crossing and the difficulty of seeing a train approaching from the north. The fact that his hearing was somewhat impaired would not exempt him from the necessity of using the care required of persons in possession of their ordinary senses or faculties. A person suffering under such an infirmity should use more diligently his other faculties. If the place was dangerous and the approach to it by a train obscured, he should have proceeded with more caution and circumspection than if the crossing were in an open country; and not ventured upon the track without ascertaining that no train was approaching, or at least without the use of the means that common prudence would dictate to ascertain such fact. But as this was not a regular train, or on usual time, the same’degree of caution would not be required on his part or such as if it were a regular train and on usual time.”

And further on: —

It is shown by the evidence, and not disputed, that plaintiff was accustomed to pass this crossing, and may be presumed to know and be acquainted with the usual rate of speed with which the trains passed this crossing, and, if this train was not moving at a greater rate, he should be held as bound to exercise such care and caution as to avoid collision with such trains moving at usual rates times; so that, unless you find that the train was moving at an fluff Unreasona^e ra^e sPeed, you would be warranted in n ing the plaintiff was guilty of negligence which contributed to e injury, and hence not entitled to recover.”

th e.^ac^s assumed in the instruction proposed depended on evidence, and did not by any means comprise all the facts agaring uPon the question ; and, aside from the discretion which,

■ aVe may be exercised by the judge, we think he quite right in this instance, after stating the law to the jury, mitting the evidence to their consideration.

Another instruction asked for was as follows : —

“ It is the duty of Cvery one approaching with his wagon and team along a highway to the crossing of a steam railroad to listen and to look both ways along the railroad before going upon it. If by reason of the character of the ground or other obstructions, or if by reason of a defect in his sense of sight or of hearing, he cannot determine with certainty whether or not a train of cars is approaching without stopping, and, if necessary, going in advance of his team to examine, it is his duty to do so. If in such case he goes upon the track without taking such precaution, he does so at his own peril, and cannot recover if injury results.”

Here is no assumption of facts as in the previous instruction; but it states the duty of persons approaching a railroad with wagons and teams in a more absolute and unqualified form than we think admissible. It states such duty with the rigidity of a statute, making no allowance for modifying circumstances or for accidental diversion of the attention, to which the most prudent and careful are sometimes subject; and assuming, in effect, that the duty of avoiding collision lies wholly, or nearly so, on one side. We think that the qualified form in which the duty of travellers, on highways in approaching a railroa was stated by the judge in his charge, as applicable to the evidence and circumstances of this case, was all that could be just y required by the defendants. Judgment affirmed.