I. In answer to that portion of appellants' brief which raises the charge of fraud in fact in Martin, in obtaining the decree in the suit of Martin v. Castro, we say: 1. If this Court were to look into the evidence, it would find an utter absence of anything tending to fraud in Martin or any one else, in the proceedings in relation to that decree. 2. The Court will not look into the evidence for the purpose of seeing if fraud were proved or not, because the Court below found as a matter of fact that there was no fraud, and the appellants acquiesced in that finding, made no motion for a new trial, and are therefore concluded. (Gagliardo v. Hoberlin , 18 Cal.)
II. It being established, that the decree in the old suit of Martin v. Regla et als. was not fraudulent in fact, the question now for the first time made (i. e., as to the form of the decree in question in not giving theinfant defendants a day after coming of age to show cause against the decree) cannot affect the result of the suit. These infants have now, at all events, taken their day in Court for the purpose of assailing the decree. They did not assail the decree in question on the ground of mere form in not giving day to the infants. The whole question made by them below was as to the fraud in fact, which they charged Martin to have used to obtain his decree in 1853. The question of the form of the decree cannot be considered. (Morgan v. Hugg , 5 Cal. 410.)
III. There were but three infants who were defendants in the decree in question, and eight adults. These eight defendants, who submitted to and acquiesced in the decree for years, are not protected by the form of the decree; there is no law to show that the decree in question ought, in form or otherwise, to have given these eight adults day to show cause against the decree. Had the decree given them day to show cause against it, Martin could have appealed and reversed the decree on that ground. The decree is right, then, in form as to them; in its substance, it is shown by the finding and decree of the Court below to have been fairlyobtained; and being, as to these adults, the decree of a Court of competent jurisdiction fairly obtained, never appealed from until now, it has become by lapse of time purged of any mere errors of law which might have intervened in its rendition. The appellants' counsel holds that the decree could not be opened as to the three infants without opening it altogether, and for the benefit of all the defendants; but in this he is mistaken. True, if fraud in fact had been established, that result might have followed, and the decree be worthless for any purpose in the hands of Martin, who was guilty of the fraud; but here it is established that the decree was fairly obtained; and to this decree, fairly obtained, the infants set up a defense purely personal to themselves. Even at law, such a defense did not affect the condition of an adult codefendant. If two were sued ex contractu, and one pleaded his infancy and succeeded, this did not discharge the other; but as to him, the action would proceed. (Hartness v. Thompson, 5 Johns. 162, and the numerous authorities there cited; French v. Shotwell, 5 Johns. Ch. R. 565; 1 Meigs, 613, cited in 2 U.S. Dig. 163, sec. 139; Downey v. Collins, 2 B. Monr. 95.)
But by our law, an infant has no right to a day in Court to show cause against a decree; and a decree may rightfully be entered against the infant absolutely in the first instance. Our code in 1853--the law in force when the decree was made--contained full directions as to the method of service upon an infant, the appointment of a guardian ad litem, & c. Nothing is said whatever as to any judgment or decree not being as effectual against him as against any one else. By the sixty-eighth section of that act the Court was authorized, upon certain specified grounds, to allow a defendant, against whom judgment had been rendered, to answer within six months to the merits of the original action. The infancy of the defendant was not one of the grounds. On the contrary, in no case could the defendant be allowed this six months if personal service of the summons had been made; and personal service of the summons was required by law to be made upon infants. (Pr. Act of 1851, sec. 29.)
But even if the infants have such day as claimed for them, they having now, since they attained their majority, filed this bill in which they associate the eight adultdefendants with them as cocomplainants, must in this decree fail or succeed only as the adults may fail or succeed. (Reden v. Trim, 3 Murphy, N. C.; Keeton's Heirs v. Keeton's Adm'rs , 20 Mo. 544.)
JUDGES: Baldwin, J. delivered the opinion of the Court. Field, C. J. concurring.
OPINION
BALDWIN, Judge
This was a bill, filed by the heirs of one Castro, to set aside a decree obtained against them in 1853, by defendant, for the specific performance of a contract between himself and their ancestor. Martin obtained a decree after certain proceedings, which are set out in the bill. The ground upon which this bill proceeds, is fraud upon the part of Martin in obtaining the decree, and in the proceedings leading to it, and also other grounds applicable to three of the defendants, who were infants at the time of Martin's decree. The question of fraud in fact was tried by the Court below, and the finding is against the charge.
1. The finding, under the circumstances, is conclusive. A very clear case of mistake on the part of the Court below must be shown, upon an issue of fact, to induce us to interfere with the conclusions of the Judge trying the case and hearing the testimony. The matters relied on by the appellants to establish the fraud are mostly, if not entirely, mere circumstances of suspicious or equivocal import, and to which we could not attach, even if unexplained, conclusive effect. Besides, it seems no motion was made for a new trial upon the ground that the finding was contrary to the evidence.
2. It is urged that the decree in the case of Martin v. Castro's Heirs does not give a day to the infants, after arriving at age, to show cause against the decree, and that this omission makes it fraudulent. This position is untenable. It would not be any ground of objection to the decree, so far as the adults are concerned, that this omission occurred as to the minors. The minors either were or were not entitled by law to this privilege; if entitled, the omission to recite it in the decree would not deprive them of it; if not entitled, no injury was done by the omission. But in no event could a mere irregularity or omission of this sort in a decree be construed as a fraud, or as conclusive evidence of a fraud, annulling the decree; for if this were so, it is impossible to see why any other irregularity or error would not avoid a judgment for this cause, and thus appeals would become useless.
3. It is scarcely necessary for a decision in this case to consider whether these minor heirs were entitled, under our statute, to come in before or after arriving of age, and contest the decree, or show cause against it; for it seems that in this very case, they have availed themselves of their asserted right; that they have in this proceeding assailed this decree--for fraud, among other things--and that the charge has been found against them. It can scarcely be contended that an infant, against whom a decree has been regularly rendered after service of process, etc., has a peremptory right at any future time to claim that the decree is to be held for naught, and that at his mere option all the matters of the original litigation shall be retried.
It is not necessary to notice the other points.
Judgment affirmed.