On rule to show cause why judgment of Supreme Court, affirming judgment of the Monmouth Common Pleas Court, should not be set aside, and a new trial awarded.
For the appellant, Durand, Ivins & Carton.
For the respondent, Theodore D. Parsons and Theodore J. Labrecque.
Before Brogan, Chief Justice, and Justices Trenchard and Heher.
The opinion of the court was delivered by
HEHER, J. Plaintiff recovered a judgment against defendant Elmer, in the Monmouth County Court of Common Pleas, in an action in tort for negligence. There was a nonsuit in favor of defendant Edvy. Elmer appealed to this
court, and the judgment was affirmed. 11 N.J. Mis. R. 632; 167 A. 751. The order of affirmance was entered on August 1st, 1933, and directed that the record and proceedings be remitted to the Common Pleas Court.
On October 2d, 1933, upon a verified petition filed in this court, alleging, inter alia, that plaintiff procured the judgment by fraud, in that, on the trial of the issue joined herein, he testified falsely as to the injuries sustained as a result of Elmer's negligence, a justice of this court made an order directing respondent to show cause before the court why the judgment of affirmance should not be set aside and the cause remanded to the lower court for a new trial. Depositions were taken by both parties, pursuant to leave granted by the order.
We are confronted, in limine, with the question of jurisdiction, and it must be resolved in the negative. The insistence of appellant is that the proofs establish the perpetration of the fraud alleged in the petition, and that "a court has inherent jurisdiction over its judgment," and has the power to vacate it when it is established that it was the product of fraud, and that the only available remedy is "to send this case back to the Common Pleas Court, and to order a new trial."
Unquestionably, an appellate court may vacate its judgment, if it is the product of fraud or imposition practiced upon that court, or was entered through inadvertence or mistake. It has been held that, in such a situation, the cause, in contemplation of law, remained in the appellate court, the remittitur being regarded as not the act of the court. Putnam v. Clark, 35 N.J. Eq. 145. But such is not the case here. The fraud alleged was practiced, if at all, in the court below.
Now, the situation here is that, pursuant to the command of the remittitur, the record and proceedings were remitted to the Common Pleas Court, and thereby jurisdiction of the cause was lost to this court and reinvested in the lower court. It is well settled that when judgment has been given in a cause in which the court exercises ...