The record-union., 1891-02-19

tense can be supported in no other way;
that the very object of the trial is,
! II possible, TO ascertain the truth
from the conflict of the evidence. and
| that necessarily the truth or falsity OF
the testimony must be determined in de-
Gliding the issue. The trial is his oppor-
tunity for making the truth appear. II
unfortunately he fails, being overborne
by perjured testimony, and ii he likewise
falls to show the injustice that has been
| done him, on motion for new trial, and
the judgment is affirmed on appeal, he is
without remedy. The wrong in such case
| IS, of course. a most grievous one and no
doubt the Legislature and the courts
would be glad TO redress it if rule could
be devised that would remedy the evil
without producing mischiefs far worse
than the evil to be remedied. Endless
litigation in which nothing was ever
fnally determined would be worse than
occasional miScarriages of justice, and so
the rule is that final judgment cannot be
annulled merely because it can be shown
to have been based on perjured testi-
mony, for if this could be done once it
could be done again and again Gd IN
.faitunl.
But counsel for appellant seeks to dis
tlngulsh this case from those in which it
has been held that a Judgment will not
pe set aside by reason of its being based
upon forged documents or perjured testi-
mony. They say that the fraud committed
by Conn was the bribing of Johnson;
that this was collateral and extrinsic;
that it was not and could not have been
the subject Of investigation at the trial OF
the original action.
We do not think this distinction can be
maintained. The fraud which Cohn COM
mltted was the production Of perjured
| evidence in support OF his defense; the
means by which he induced the witness
to swear falsely was but an incident. 1t
may be safely asserted that wit
ness does not often deliberately periure
himself without being induced thereto by
some fraudulent or corrupt practice on
| the part OF him who gets the advantage of
the perjury. 1t is 4 matter of inditfc1 :
ence what particular form such corrupt
practice takes-the evil and the wrong is
IN the perjury which follows. In this
| case the truth of Johnson's evidence was
! necessarily drawn in question at the trial
and determined by the decision OF the
court; and all that has since been dis
covered is another item of testimony
bearing on that point. We cannot find
any substantial ground upon which this
case can be distinguished from q. S. VS..
Ihrockmorton, supra. The decision in
that case has been approved by this court
! as recently as IN Re Griffith, 81 Cal 113.
The following decisions of this court
y.
Cal. 32l; Amadorv VS.. Mitchell, 50 Cal. i76.
Many other authorities to the same effect
are cited in the brief for respondents.
On the other hand the case of Laith VS..
Mcdonald, Kansas 254, and L Kansas
$40, directly support the position of APP
pellant, as does the case of Fabrilius
vs.. Cock. 3 Burr, l77l.
The case of Verplanck VS.. Van Buren,
76 n. Y. 2i7, and Dringer VS.. Receiver,
etc, q n. J. Eq. 573, contain expressions
which seem to imply the same doctrine,
but they do not directly support it.
Other cases cited by appellant are less in
point.
s. We think, on the whole, that it is settled
by the great weight of authority that the
plaintiffs action cannot be maintained,
and that the Judgment of the Superior
Court must be affirmed. So ordered.
BEATTY, C. J.
We concur:
MCFARLAND, J.,
SHARPsrEIN, j.,
PATERSON, j.