II. Jurisdiction. b. Remedy at law. quate as to prevent equitable relief. Sloss-Sheffield Steel & I. Co. v. Johnson, 8 L.R.A. (N.S.) 226, 147 Ala. 384, 41 So. 907. 8. Equity has jurisdiction to set aside an illegal contract of a board of education which will create a debt in fraud of the rights of taxpayers, if there is no other adequate remedy. Honaker v. Board of Education, 32 L.R.A. 413, 42 W. Va. 170, 24 S. E. 544. t. Equity has jurisdiction of a suit to prevent the obstruction of a floatable stream if the damages constitute deprivation of estimated profits to be earned which are of such a nature that no recovery can be had for them in a court of law. Blackman v. Mauldin, 27 L.R.A. (N.S.) 670, 164 Ala. 337, 51 So. 23. u. A judgment creditor having under a arnishment statute, the legal right to levy upon choses in action of his debtor, may come into equity to effectuate that legal right, when, because of some impediment, it can not be enforced by garnishment. IIall v. Henderson, 63 L.R.A. 673, 134 Ala. 455, 32 So. 840. See also post, § 59 f, i; INJUNCTION, § 13; SPECIFIC PERFORMANCE, §§ 3 b-e, 43 c, 45 c. a. The remedy at law, in order to oust jurisdiction in equity, must secure the whole right of the complaining party, in a perfect manner, at the present time and in the fuCo. 37 L.R.A. 780, 181 Pa. 40, 37 Atl. 191. ture. Pennsylvania Co. v. Franklin F. Ins. be one which our own courts can apply, b. A legal remedy, to be adequate, must and does not compel the party to go into the courts of a foreign jurisdiction to avail Lake Torpedo Boat Co. L.R.A.1916F, 1033, himself of it. State ex rel. Eliot & Co. v. 90 Conn. 638, 98 Atl. 580. c. It is not sufficient to prevent a resort to a court of equity, that there is a remedy at law but the remedy at law must be plain and adequate and as practical and efficient to the ends of justice and its prompt administration as is the remedy in equity. Sandage v. Studebaker Bros. Mfg. Co. 34 L.R.A. 363, 142 Ind. 148, 41 N. Ē. 380. and the substantial equivalent of the equitable relief. Ekeberg v. Mackay, 35 L.R.A. (N.S.) 909, 114 Minn. 501, 131 N. V. The remedy of a chattel mortgagee d. A remedy at law, to exclude approseeking to recover possession of the mort-priate relief in equity, must be complete gaged property is in equity where replevin is inadequate because of the indivisible nature of the property. Thomas v. Armstrong, L.R.A.1916B, 1182, 51 Okla. 203, 151 Pac. 689. exist w. Where special circumstances rendering the remedy at law against an instrument alleged to have been procured by fraud inadequate, the party is entitled to equitable relief as matter of right. Johnson v. Swanke, 5 L.R.A. (N.S.) 1048, 128 Wis. 68, 107 N. W. 481. x. The injury resulting from the appropriation by a city of another's right of way over its property, and making it a part of the highway, is one of a continuing or permanent nature, for which an action at law does not afford a complete and adequate remedy. Lowery v. Pekin, 51 L.R.A. 301, 186 III. 387, 57 N. E. 1062. y. The publication of an unjust and malicious criticism of a manufactured article is not the subject of equitable cognizance, although the manufacturer has no remedy at law because of inability to prove special damage. Marlin Firearms Co. v. Shields, 59 L.R.A. 310, 171 N. Y. 384, 64 N. E. 163. z. Reciprocal easements created by mutual covenants of adjoining lot owners for the use of stairs, hallways, skylight, and heating apparatus in common in buildings which they erect, may be protected and enforced by a court of equity when the rem y at law is insufficient. Barr v. Lamaster, 32 L.R.A. 451, 48 Neb. 114, 66 N. W. 1110. W. 787. e. The right of an equity tribunal to hear and determine a cause of which a court of law may have concurrent jurisdiction is not defeated unless the legal remedy, in respect to the final remedy and the mode of securing it, is as efficient as the redress which a court of chancery can afford under the same circumstances. Hall v. Dunn, 25 L.R.A. (N.S.) 193, 52 Or. 475, 97 Pac. 811. f. The adequate remedy at law which will deprive a court of equity of jurisdiction must be a remedy as certain, complete, prompt, and efficient to attain the ends of justice as the remedy in equity. Williams v. Neely, 69 L.R.A. 232, 134 Fed. 1, 67 C. C. A. 171; Brun v. Mann, 12 L.R.A. (N.S.) 154, 151 Fed. 145, 80 C. C. A. 513; Pickering v. Palmer, 50 L.R.A. (N.S.) 1055, 18 N. M. 473, 138 Pac. 198. g. The remedy at law must be quite as complete as that in equity, to defeat the power of equity to proceed. M. & L. S. Fechheimer & Co. v. N. B. Baum & Bro. 2 L.R.A. 153, 37 Fed. 167; Hodges v. Kowing, 7 L.R.A. 87, 58 Conn. 12, 18 Atl. 979. h. The inadequacy of a legal remedy because of the refusal of the proper officers to execute it, will not warrant a court of equity in granting relief, since for that purpose, the legal remedy must be inadequate in its nature or character. Preston v. Sturgis Mill. Co. 32 L.R.A. (N.S.) 1020, 183 Fed. 1, 105 C. C. A. 293. i. The remedy at law of a municipal corporation which has paid over money, which it appropriated, in violation of the Constitution, to induce the building of a railroad to the town, to recover it back, is complete; and the case should not be transferred from II. Jurisdiction. law to equity. Luxora v. Jonesboro, L. C. & E. R. Co. 13 L.R.A. (N.S.) 157, 83 Ark. 275, 193 S. W. 605. j. Equity has no jurisdiction of a suit to prevent wrongful interference by one who has granted the right to hunt on his land with the rights of the grantee, since the remedy at law for damages is adequate. Isherwood v. Salene, 40 L.R.A. (N.S.) 299, 61 Or. 572, 123 Pac. 49. k. Setting up unconstitutionality of a statute in defense of a criminal information or indictment gives an adequate remedy at law against the statute, which will preclude equitable relief, where it can be enforced only by such criminal proceedings. State ex rel. Kenamore v. Wood, 48 L.R.A. 596, 155 Mo. 425, 56 S. W. 474. 1. One of two lawyers who have undertaken to conduct litigation for a client has a plain, adequate, and complete remedy at law in an action for money had and received to his use, which will preclude a resort to equity in case the other receives and retains an undue proportion of the compensation paid for the services. Willis v. Crawford, 53 L.R.A. 904, 38 Or. 522, 63 Pac. 985, 64 Pac. 866. § 57. When remedy at law will not oust equity. Failure to raise promptly, see ante, § 53 b. As affected by adequacy or inadequacy of remedy at law, see ante, §§ 55, 56. When remedy at law in state court, will not oust equitable jurisdiction in Federal court, see COURTS, § 301. Right to equitable relief against liquor nuisance though its maintenance constitutes crime, see INTOXICATING LIQUORS, § 113 i, j. See also post, § 67 1; INJUNCTION, §§ 12, 13; SPECIFIC PERFORMANCE, § 4 c, e, g. d, a. On occasions conditions may arise in which it would be appropriate for an equity court to take jurisdiction, even though there was a remedy at law of which a plaintiff might avail himself. Frey v. McGaw, L.R.A.1916D, 113, 127 Md. 23, 95 Atl. 960. b. Where a court of equity has original jurisdiction and a statute confers upon the common-law courts a similar power, the jurisdiction of equity is not thereby ousted. Carter v. Suburban Water Co. L.R.A.1918A, 764, 131 Md. 95, 101 Atl. 771. c. The jurisdiction of equity over a matter is not lost by a statute giving jurisdiction of the same matter to courts of law, in the absence of restricting or prohibitory words in the statute. Johnson v. Black, 68 L.R.A. 264, 103 Va. 477, 49 S. E. 633. d. The equitable jurisdiction of the court to rescind a sale for fraud is not ousted by the existence of a remedy at law to recover possession of the property conveyed. Swan v. Talbot, 17 L.R.A.(N.S.) 1066, 152 Cal. 142, 94 Pac. 238. b. Remedy at law. lief in favor of the defendant when the trial of the action at law might affect his reputation and character in the community by reason of charges and revelations as to his past conduct, whether real or fabricated, on which the action was based. Bomeisler v. Forster, 39 L.R.A. 240, 154 N. Y. 229, 48 N. E. 534. f. The jurisdiction of equity to entertain a suit by a taxpayer, suing on behalf of himself and others, to compel restoration of county funds illegally withdrawn by order of the board of supervisors, is not taken away by a statute giving a right, upon concurrence of six freeholders, to appeal from the order of the board, allowing the claim within thirty days after it is rendered. Johnson v. Black, 68 L.R.A. 264, 103 Va. 477, 49 S. E. 633. § 58. Corporate matters. Jurisdiction of equity over corporate mat Enforcement of unpaid stock subscription, ters generally, see ante, §§ 35, 36. see CORPORATIONS, § 298. Enforcement of stockholder's liability, see CORPORATIONS, § 299 j. See also post, § 67 n; INJUNCTION, II. g. a. The statutory lien of a corporation upon its stock for the debt of a stockholder cannot be foreclosed in equity, when the remedy by judgment and execution is not inadequate. Aldine Mfg. Co. v. Phillips, 42 L.R.A. 531, 118 Mich. 162, 76 N. W. 371. b. There is no adequate remedy at law against a corporation for refusal to enter a transfer of stock on its books, which will defeat a proceeding in equity to compel such transfer." Westminster Nat. Bank v. New England Electrical Works, 3 L.R.A. (N.S.) 551, 73 N. H. 465, 62 Atl. 971. $ 59. As to real property. Effect of remedy at law on right to maintain action to remove cloud on title, see CLOUD ON TITLE, § 3. For continuing nuisance, see NUISANCES, § 117. Effect on equitable right to enforce vendor's lien, see VENDOR AND PURCHASER, § c. Equity will not take cognizance of an ordinary matter of trespass, or of the violation of any legal right, unless the circume. An available legal defense to a pend- stances are of such a character as to bring ing action at law which is furnished by a the case under some recognized head of valid release will not prevent equitable re-equity jurisdiction. Equity will, however, II. Jurisdiction. b. Remedy at law. afford a remedy in such cases where the remedy at law is incomplete and inadequate to give such relief as the nature of the case demands. Haines v. Hall, 3 L.R.A. | 609, 17 Or. 165, 20 Pac. 831. d. Equity has jurisdiction of a suit to terminate the rights of a railroad company in land granted to it for a right of way on condition that it maintain depots on the property, where the original grantee is insolvent, so that a judgment at law would be of no avail, and the grantor has only an easement remaining in the land, so that he cannot maintain ejectment. Lyman v. Suburban R. Co. 52 L.Ř.A. 645, 190 Ill. 320, 60 N. E. 515. e. A purchaser of wild and unimproved land situated about 70 miles from any railroad station does not have an adequate remedy at law to recover damages for a breach, by the vendor, of an agreement to construct a railroad line through, or within 10 miles of, such land, so as to prevent him from bringing an action for the cancelation of the contract, as the difference between the value of such land 70 miles from a railroad and within 10 miles of a railroad, although very appreciable, is so speculative as not to be susceptible of proof. Southern Colonization Co. v. Derfler, L.R.A.1917F, 744, — Fla. ——, 75 So. 790. f. An action for forcible entry and detainer to recover possession of property leased, for mining purposes is not an adequate remedy, so as to defeat the jurisdiction of equity, where the mining operations are being carried on in such a way as to remove the supports of the surface and cause it to subside. Big Six Development Co. v. Mitchell, 1 L.R.A. (N.S.) 332, 138 Fed. 279, 70 C. C. A. 569. g. As growing timber is part and parcel of the land on which it stands, wrongful destruction thereof is an injury to the land itself, not adequately remediable by an action at law. Pardee v. Camden Lumber Co. 43 L.R.A. (N.S.) 262, 70 W. Va. 68, 73 S. E. 82. h. An owner of land with standing timber thereon has a legal right, not sustained by legal remedies, to keep the timber in its natural state until such time as he may see fit to alter its character and incidents by severance, wherefore equity, upon a proper application therefor, will interpose its remedies for protection thereof. Pardee v. Camden Lumber Co. 43 L.R.A. (N.S.) 262, 70 W. Va. 68, 73 S. E. 82. i. Statutes providing a summary remedy for a landlord to obtain possession of the leased premises do not deprive equity of jurisdiction of a suit to determine the rights of the parties under a clause in the lease giving a right to renewal at a rental to be fixed by arbitrators, since the remedy provided by them is not adequate. Kaufmann v. Liggett, 67 L.R.A. 353, 209 Pa. 87, 58 Atl. 129. land has been conveyed by the judgment a. A suit by the state or by a county for the collection of taxes is not within the jurisdiction of a court of equity, where the will be remitted to his action at law, if a 765. Hewins v. At a. A court will not in the exercise of its equity power interfere to set aside a judgment so long as there is another subsisting adequate remedy, but it may do so where there is no such remedy and where there is no laches or want of diligence, imputable to the party asking relief. State ex rel. Happel v. District Court, 35 L.R.A. (N.S.) 1098, 38 Mont. 166, 99 Pac. 291. al. Courts of equity will refuse to entertain a bill to set aside a judgment where there is an adequate remedy by motion in the action in which the judgment was rendered. Braithwaite v. Jordan, 31 L.R.A. 238, 5 N. D. 196, 65 N. W. 701.. b. Where a cause has proceeded to trial and final judgment, a court of equity will not vacate or open up the judgment and grant a new trial of the same issue determined in the former hearing, in the absence j. A bill for relief may be maintained in of fraud or undue advantage by the prevail. equity by one who has purchased land at ing party. Michael v. American Nat. Bank, an execution sale and been put into posses- 38 L.R.A. (N.S.) 220, 84 Ohio St. 370, 95 sion by a writ, where, after the sale, the ❘ N. E. 905. II. Jurisdiction. c. Relief against judgments, orders, or awards. b1. No person will be permitted to pro- | c. Resort to equity to vacate a judgment ceed in equity against a judgment or de- procured by fraud cannot be had where the cree to which he was not a party, and which statutes provide a plain and adequate rem did not at its rendition affect any of his edy at law for the alleged wrong. Travel rights. Whitney v. Kelley, 15 L.R.A. 813, ers' Protective Asso. v. Gilbert, 55 L.R.A 94 Cal. 146, 29 Pac. 624. 538, 111 Fed. 269, 49 C. C. A. 309. c. An independent action in equity to set aside a judgment cannot be resorted to as a substitute for a demurrer to a defective pleading. McElrath v. Littell 44 L.R.A. (N.S.) 505, 120 Minn. 380, 139 N. W. 708. d. As a general rule a party who has per mitted a judgment to be taken against him without interposing the defense of usury cannot invoke the powers of a court of equity for relief. Hightower v. Coalson, 12 L.R.A. (N.S.) 659, 151 Ala. 147, 44 So. 53. e. In a state where a justice of the peace has no power to set aside his judgments or grant a new trial, and where upon appeal or certiorari to the district court, the cause is triable de novo only, one against whom a void judgment has been rendered by a justice of the peace is not, though with actual notice thereof, guilty of laches and negligence sufficient to bar his right to an equit able remedy against such judgment, because he fails to appeal or sue out a writ of certiorari. Pickering v. Palmer, 50 L.R.A. (N.S.) 1055, 18 N. M. 473, 138 Pac. 198. (Annotated) f. An infant who received a personal in jury for which an inadequate settlement had been made between the wrongdoer and the infant's father, evidenced by a judgment of a city court, the jurisdiction of which was similar to that of a justice of the peace, without evidence or judicial consideration of any kind, may, on attaining his majority, bring an independent action in a court having general jurisdiction both at law and in equity, and have the judgment of the city court set aside, as a pertinent incident to the securing of adequate redress for his injuries. Leslie v. Procter & G. Mfg. Co. L.R.A.1918C, 55, 102 Kan. 159 169 Pac. 193. (Annotated) § 62. Judgments obtained by fraud, collusion, or perjury. Injunction against, see INJUNCTION, § 118. Against insane person, see JUDGMENT, § 309 b. Time within which relief must be sought, see JUDGMENT, § 319. See also post, §§ 63 b, 65 a, b; JUDGMENT, § 286 e. cl. The fraud or undue advantage for which a court of equity will set aside a judgment or decree must consist of extrin sic acts outside of and collateral to the matter actually tried by the first court, and not related to the matter concerning which the judgment or decree was rendered Michael v. American Nat. Bank, 38 L.R.A (N.S.) 220, 84 Ohio St. 370, 95 N. E. 905. c2. The fraud for which a court of equity will annul a judgment or decree after the term has ended is fraud, extrinsic or col lateral, to the matter tried and not fraud in the matter on which the decree was rendered. Nelson v. Meehan, 12 L.R.A. (N.S.) 374, 155 Fed. 1, 83 C. C. A. 597. c3. Equity will not relieve a party from the effect of a judgment claimed to have been obtained by fraud when the fraud charged relates to matters upon which the judgment was regularly obtained, and an opportunity was given the party against whom it was entered to contest the matters in issue, or present any defense which was available, fraud which was directed to, or bore upon, the claim or issue which was before the court for determination. Flood v. Templeton, 13 L.R.A. (N.S.) 579, 152 Cal. 148, 92 Pac. 78. d. A judgment of a city court, whose jurisdiction is similar to that of a justice of the peace, is subject to direct attack in a court of equity, where fraud in the rendition of such judgment is charged. Leslie v. Procter & G. Mfg. Co. L.R.A.1918C, 55, 102 Kan. 159, 169 Pac. 193. e. The jurisdiction of a court having jurisdiction both at law and in equity may be invoked to set aside a judgment of an inferior court for fraud, extrinsic to the issues, without the formality of seeking the correction of the judgment in the inferior court which rendered it, especially if such inferior court has no equitable jurisdiction. Leslie v. Procter & G. Mfg. Co. L.R.A.1918C, 55, 102 Kan. 159, 169 Pac. 193. el. The fraud of a creditor holding a mortgage on his debtor's property, in inducing him to permit a foreclosure of the mortgage and a transfer of the title to the mortgagee for much less than the property is worth, without interposing a valid defense and set-off to the greater part of the claim, under promise, which the mortgagee does not mean to keep, to devise the property to the mortgagor upon death of the b. Fraud is the arch enemy of equity, and mortgagee, does not enter into the decree a court of equity will relieve against a of foreclosure, so as to preclude a court of judgment obtained by inposition. Thoma-equity from granting relief therefrom, but son v. Thompson, 26 L.R.A. (N.S.) 536, 129 a. Equity will grant relief against a judgment fraudulently obtained, when a meritorious cause of action or defense is shown. Norwegian Plow Co. v. Bollman, 31 L.R.A. 747, 47 Neb. 186, 66 N. W. 292. Ga. 440, 59 S. E. 236. b1. Equity has jurisdiction to set aside a judgment at law obtained by fraud or on other grounds of equitable cognizance. Vilas v. Butler. 9 L.R.A. 844, 123 N. Y. 440, 25 N. E. 941. is of extrinsic character, which will entitle such court to interfere and set aside the judgment. Flood v. Templeton, 13 L.R.A. (N.S.) 579, 152 Cal. 148, 92 Pac. 78. (Annotated) e2. A false pretense that the nominal plaintiff in a Federal court is the owner of II. Jurisdiction. c. Relief against judgments, orders, or awards. bonds sued on, when made to give jurisdic-, was taken by default after notice by publition to that court on the ground of diverse cation, where defendant had no actual nocitizenship of the parties, while the real tice of the action until the time for makplaintiff is in fact a citizen of the same ing a defense therein had elapsed, and state as the defendant, constitutes a fraud plaintiff had no title to the property, but which will render the judgment subject to knowingly set out a false statement of an attack in equity, if the defendant is cause of action in his complaint and in the thereby deceived and prevented by the fraud affidavit for publication. Dunlap v. Steere, from making his defense. Wonderly v. La- 16 L.R.A. 361, 92 Cal. 344, 28 Pac. 563. fayette County, 45 L.R.A. 386, 150 Mo. 635, (Annotated) 51 S. W. 745. f. A court of equity has general power to grant relief in one case from a decree or order obtained by fraud or collusion in another case, either by a bill of review, or by a supplemental bill in the nature of a review, or by an original bill. Warren v. Union Bank, 43 L.R.A. 256, 157 N. Y. 259, 51 N. E. 1036. g. A stranger to a judgment which is the result of fraud or collusion whose rights are affected thereby may appeal to a court of equity to have the same corrected for when one has gained an unfair advantage in proceeding at law, by fraud or misconduct, whereby the court is made an instrument of injustice, equity will interfere to prevent him from reaping the benefit of such unfair advantage. Stewart Lumber Co. v. Downs, 29 L.R.A. (N.S.) 1190, 142 Iowa, 420, 120 N. W. 1067. h. As a general rule courts of equity will not interfere to relieve a party to an action from a judgment which has been procured through a collusive agreement between the parties to the action, to the effect that either of said parties shall commence the action and obtain by the connivance or consent of the other a judgment to which he would not otherwise be entitled. Bancroft v. Bancroft, L.R.A.1918F, 1029, 178 Cal. 359, 173 Pac. 579. i. A court of equity will not set aside a judgment at law, because it was founded on perjured testimony, where the matter was actually presented and considered in the judgment assailed. Electric Plaster Co. v. Blue Rapids City, 25 L.R.A. (N.S.) 1237, 81 Kan. 730, 106 Pac. 1079. j. A court of equity will not vacate a judgment on the ground that it has been obtained upon false and perjured testimony. Reeves v. Reeves, 25 L.R.A. (N.S.) 574, 24 S. D. 435, 123 N. W. 869. c. To maintain a separate suit in equity to set aside a judgment obtained without service of process, which defect does not appear upon the face of the record, the party must show that he has, or at the time the judgment was entered had, a good defense, in whole or in part, to the action. Brandt v. Little, 14 L.R.A. (N.S.) 213, 47 Wash. 194, 91 Pac. 765. (Annotated) d. Failure of a nonresident corporation to act upon information furnished by a stranger, that process had been served upon him in an action against it, will not deprive it of the right to equitable relief against the judgment rendered. National Metal Co. v. Greene Consol. Copper Co. 9 L.R.A. (N.S.) 1062, 11 Ariz. 108, 89 Pac. 535. (Annotated) § 64. Decrees of probate court. a. A court of equity has jurisdiction to tributing the estate of a deceased person, correct a decree of a probate court diswhich awards larger parcels than it should, because some of the heirs had not been discovered, and the agent appointed under the statute to represent nonresident heirs has the same authority over the parcels as determined by such court, as he would have had over those fixed by the probate court. Bickford v. Stewart, 34 L.R.A. (N.S.) 623, 55 Wash. 278, 104 Pac. 263, 106 Pac. 1115. § 65. Judgments affecting marriage relations. a. The jurisdiction of the court of chancery in New Jersey over questions affecting the marriage relations of its citizens, in fraudulently obtained. Kempson v. Kempcludes the right to annul foreign judgments son, 58 L.R.A. 484, 63 N. J. Eq. 783, 52 Atl. 360. b. Equity has no jurisdiction to set aside an interlocutory decree of divorce after the time has elapsed for securing relief within k. The admission of perjury contributing the action by appeal or application under to the securing of a judgment will not give the statute, merely because it was procured equity jurisdiction to set the judgment by collusion between the parties. Bancroft aside as for fraud. Robertson v. Freebury, v Bancroft, L.R.A.1918F, 1029, 178 Cal. L.R.A.1916B, 883, 87 Wash. 558, 152 Pac. 359, 173 Pac. 579. (Annotated) 5. § 63. Judgments obtained without a. Equity has jurisdiction to open for the d. Cases of fraud; mistake; conspiracy; trusts; wills. |