394 - 434 Power of Courts To Open or Vacate Own Judgme-Merged

§ 394. Power of courts to open or vacate own judgments, 49 C.J.S.
Judgments § 394
49 C.J.S. Judgments § 394
Corpus Juris Secundum | August 2021 Update
Judgments
Francis C. Amendola, J.D.; John Bourdeau, J.D.; James Buchwalter, J.D.; Paul M. Coltoff, J.D; Cecily Fuhr, J.D.; Lonnie E. Griffith, Jr.,
J.D.; Glenda K. Harnad, J.D.; Janice Holben, J.D.; John Kimpflen, J.D.; William Lindsley, J.D.; Kristina E. Music Biro, J.D., of the staff
of the National Legal Research Group, Inc.; Thomas Muskus, J.D.; Sally J.T. Necheles, J.D., LL.M.; Jeffrey J. Shampo, J.D.; Kimberly C.
Simmons, J.D.; and Eric C. Surette, J.D.
XI. Alteration of and Relief from Judgment
C. Opening and Vacating
1. In General
§ 394. Power of courts to open or vacate own judgments
Topic Summary | References | Correlation Table
West's Key Number Digest

West's Key Number Digest, Judgment 340
A court has the inherent power to grant a motion to vacate its own judgment, although statutes or rules regulating that
power control.
A court's power to vacate a judgment is based on equitable principles.1 In accordance with the rules governing a court's power
and control over its judgments, generally,2 a court has the inherent power to grant a motion to vacate its own judgment,3 and
may be exercised without the grant of any special statutory authority.4 However, in jurisdictions having statutes or rules of
civil procedure regulating that power, those statutes or rules are controlling.5 No court other than the one which rendered the
judgment may entertain a motion to vacate it.6
Under some statutes or rules, a court retains control of its judgments for a fixed period, during which it has the power to change
its judgment; a judgment may be amended, corrected, opened, or vacated only within that time.7 A trial court clearly abuses
its discretion when it vacates a judgment after its plenary power expires.8 Conversely, a trial court does not abuse its discretion
by refusing to vacate a judgment after its plenary power expires.9
It may be within a court's discretion to determine whether it has jurisdiction under a rule governing relief from a judgment to
set aside a judgment.10
© 2021 Thomson Reuters. No claim to original U.S. Government Works. 1

§ 394. Power of courts to open or vacate own judgments, 49 C.J.S. Judgments § 394
The doctrines of res judicata and claim preclusion do not preclude a litigant from directly attacking a judgment by bringing a
motion for relief from a final judgment before the court that rendered it.11
Westlaw. © 2021 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
Footnotes
1 N.J.—LVNV Funding, LLC v. Deangelo, 464 N.J. Super. 103, 234 A.3d 319 (App. Div. 2020).
2 §§ 356 et seq.
3 Ky.—Lambert v. Lambert, 475 S.W.3d 646 (Ky. Ct. App. 2015).
N.Y.—Hudson City Savings Bank v. Hossain, 181 A.D.3d 572, 121 N.Y.S.3d 85 (2d Dep't 2020).
4 Ark.—Wells Fargo & Co. Express v. W.B. Baker Lumber Co., 107 Ark. 415, 155 S.W. 122 (1913).
5 Conn.—Asia A.M. v. Geoffrey M., Jr., 182 Conn. App. 22, 188 A.3d 762 (2018).
Fla.—Bigelow v. Ritsema, 289 So. 3d 550 (Fla. 5th DCA 2020).
Ohio—In re M.J., 2019-Ohio-1651, 135 N.E.3d 1087 (Ohio Ct. App. 8th Dist. Cuyahoga County 2019).
6 N.Y.—Campbell v. Bank of America, N.A., 155 A.D.3d 820, 64 N.Y.S.3d 306 (2d Dep't 2017).
7 § 358.
8 Tex.—In re Benavides, 605 S.W.3d 234 (Tex. App. San Antonio 2020), review denied, (Sept. 3, 2020).
10 Ark.—Watson v. Connors, 372 Ark. 56, 270 S.W.3d 826 (2008).
11 Alaska—Dixon v. Pouncy, 979 P.2d 520 (Alaska 1999).
Vt.—Jones v. Murphy, 172 Vt. 86, 772 A.2d 502 (2001).
End of Document © 2021 Thomson Reuters. No claim to original U.S. Government

Works.

§ 395. Nature and purposes of rule providing for opening..., 49 C.J.S. Judgments §...
Judgments
1. In General
§ 395. Nature and purposes of rule providing for opening or vacating of judgment

A rule on relief from judgments provides an unusual remedy against the effect of an onerous judgment, balancing finality
with fairness, and is not a substitute for an appeal.
A rule governing motions for relief from judgment offers an extreme remedy that should be employed only in extreme
situations.1 Such rules are to be used sparingly, and should be reserved for exceptional situations, as they are designed to provide
relief from a judgment in situations in which, were they not applied, a grave injustice would occur.2 Generally speaking, once
a judgment is rendered, it is to be considered final and it should not be disturbed by posttrial motions, except for a good and
compelling reason; otherwise, there might never be an end to litigation.3 On the other hand, such a statute or rule constitutes
an exception to the doctrine of finality of judgments,4 and enhances fairness in the administration of justice, by authorizing a
court to grant relief from judgments on various equitable grounds,5 and therefore should be liberally construed for the purpose
of accomplishing justice6 and to facilitate the desirable legal objective that cases should be decided on the merits.7 All doubts
should be resolved in favor of the movant.8 The hallmark of judicial intervention is the prevention of hardship or injustice.9
The purposes of a rule permitting relief from a judgment include alleviating the effect of an oppressive or onerous final
judgment,10 achieving a balance between the competing values of finality and fairness in the resolution of disputes,11 alerting
the court to errors it has committed and affording the court an opportunity to correct them,12 and allowing a party to bring to

the court's attention facts that, if the court had known them at the time of judgment, would have prevented the entry of the
judgment.13
Relief from a judgment generally depends on the occurrence of later events or requires a showing of something that was unknown
or not originally before the court.14 This is because the motion's purpose is not a collateral attack on the correctness of the
earlier judgment, but to explain why it would no longer be just to enforce it; the issue is not the correctness of the original
determination at the time it was made, but what has since transpired or been learned to render its enforcement inequitable.15
The purpose of a motion for relief from judgment is not to retry the original case.16 Thus, the motion may not be used to provide
a litigant with a second chance to present new arguments or proof,17 and is not a means to pursue relief that could have been
obtained under other rules at an earlier stage of the proceedings; accordingly, a litigant should pursue other available remedies
before requesting relief from a judgment.18 It is not a request for rehearing or that the court change its mind,19 and it must be
shown that something prevented the full presentation of the case or an accurate determination on the merits, and that for reasons
of fairness and equity, redress is justified.20 A rule governing relief from judgment may also not be used to relieve a party from
the party's free, calculated and deliberate choices.21
A motion for relief from judgment is not a substitute for22 or an alternative to23 a timely appeal.
Footnotes
1 Ala.—N.A. v. J.H., 581 So. 2d 492 (Ala. Civ. App. 1991).
Extraordinary circumstances
N.D.—Bellefeuille v. Bellefeuille, 2001 ND 192, 636 N.W.2d 195 (N.D. 2001).
Vt.—Adamson v. Dodge, 174 Vt. 311, 816 A.2d 455 (2002).
Most unusual of circumstances
Idaho—Flood v. Katz, 143 Idaho 454, 147 P.3d 86 (2006).
Unique and compelling circumstances
Idaho—Palmer v. Spain, 138 Idaho 798, 69 P.3d 1059 (2003).
2 N.J.—Housing Authority of Town of Morristown v. Little, 135 N.J. 274, 639 A.2d 286 (1994).
W. Va.—Coffman v. West Virginia Div. of Motor Vehicles, 209 W. Va. 736, 551 S.E.2d 658 (2001).
3 Conn.—Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 952 A.2d 1 (2008).
4 Mont.—In re Marriage of Weber, 2004 MT 211, 322 Mont. 341, 96 P.3d 716 (2004).
5 Wis.—Larry v. Harris, 2008 WI 81, 311 Wis. 2d 326, 752 N.W.2d 279 (2008).
Motion governed by equitable principles
Idaho—Campbell v. Kildew, 141 Idaho 640, 115 P.3d 731 (2005).
6 Miss.—Hall v. Hall, 281 So. 3d 211 (Miss. Ct. App. 2019).
Vt.—Penland v. Warren, 208 Vt. 15, 2018 VT 70, 194 A.3d 755 (2018).
7 W. Va.—Coffman v. West Virginia Div. of Motor Vehicles, 209 W. Va. 736, 551 S.E.2d 658 (2001).
8 Del.—Chaverri v. Dole Food Company, Inc., 220 A.3d 913 (Del. Super. Ct. 2019).
9 Vt.—Brandt v. Menard, 2020 VT 61, 237 A.3d 1251 (Vt. 2020).
10 Tenn.—Hussey v. Woods, 538 S.W.3d 476 (Tenn. 2017).
11 N.D.—Berry v. Berry, 2017 ND 245, 903 N.W.2d 68 (N.D. 2017).
N.M.—Rogers v. Board of County Commissioners of Torrance County, 2020-NMCA-002, 455 P.3d 871
(N.M. Ct. App. 2019), cert. denied, (Dec. 9, 2019).
Wash.—Fireside Bank v. Askins, 195 Wash. 2d 365, 460 P.3d 157 (2020).
12 Ill.—Federal Kemper Life Assur. Co. v. Eichwedel, 266 Ill. App. 3d 88, 203 Ill. Dec. 207, 639 N.E.2d 246
(1st Dist. 1994).
13 Ill.—Klein v. Steel City Nat. Bank, 212 Ill. App. 3d 629, 156 Ill. Dec. 771, 571 N.E.2d 751 (1st Dist. 1991).

14 Wyo.—Stevens v. Murphy, 680 P.2d 78 (Wyo. 1984).

15 N.J.—In re Guardianship of J.N.H., 172 N.J. 440, 799 A.2d 518 (2002).
16 Miss.—Desoto County v. Standard Construction Company, Inc., 283 So. 3d 102 (Miss. 2019).
Wyo.—Essex Holding, LLC v. Basic Properties, Inc., 2018 WY 111, 427 P.3d 708 (Wyo. 2018).
17 Ky.—Ford v. Ford, 578 S.W.3d 356 (Ky. Ct. App. 2019).
Summary judgment
A motion to alter, amend, or vacate a judgment or a response to such a motion is not a proper vehicle for
presenting a new ground on which to base summary judgment.
Ala.—Middleton v. Caterpillar Indus., Inc., 979 So. 2d 53 (Ala. 2007).
18 Miss.—Kirk v. Pope, 973 So. 2d 981 (Miss. 2007).
19 Mont.—In re Marriage of Schoenthal, 2005 MT 24, 326 Mont. 15, 106 P.3d 1162 (2005).
W. Va.—Kerner v. Affordable Living, Inc., 212 W. Va. 312, 570 S.E.2d 571 (2002).
20 Mont.—In re Marriage of Schoenthal, 2005 MT 24, 326 Mont. 15, 106 P.3d 1162 (2005).
21 N.D.—State v. Martin, 2018 ND 262, 920 N.W.2d 317 (N.D. 2018).
22 Ohio—Hussain v. Hussain, 2020-Ohio-531, 152 N.E.3d 365 (Ohio Ct. App. 12th Dist. Butler County 2020).
Vt.—Brandt v. Menard, 2020 VT 61, 237 A.3d 1251 (Vt. 2020).
Wash.—Winter v. Department of Social and Health Services on behalf of Winter, 12 Wash. App. 2d 815,
460 P.3d 667 (Div. 1 2020), review denied, 2020 WL 7056103 (Wash. 2020).
Wyo.—Webb v. State ex rel. Department of Family Services, Child Support Enforcement Division, 2020
WY 111, 471 P.3d 289 (Wyo. 2020).
As to a motion to vacate being precluded when the proper remedy is by appeal, see § 430.
Rule not inflexible
N.D.—In re Guardianship and Conservatorship of Onstad, 2005 ND 158, 704 N.W.2d 554 (N.D. 2005).
23 Ariz.—Craig v. Superior Court In and For Pima County, 141 Ariz. 387, 687 P.2d 395 (Ct. App. Div. 2 1984).
Kan.—Vogeler v. Owen, 243 Kan. 682, 763 P.2d 600 (1988).
Me.—Kolmosky v. Kolmosky, 631 A.2d 419 (Me. 1993).
Mo.—State ex rel. Missouri-Nebraska Exp., Inc. v. Jackson, 876 S.W.2d 730 (Mo. Ct. App. W.D. 1994).
R.I.—Nichola v. John Hancock Mut. Life Ins. Co., 471 A.2d 945 (R.I. 1984).

Works.

§ 396. Motion to open or vacate judgment distinguished..., 49 C.J.S. Judgments §...
Judgments
1. In General
§ 396. Motion to open or vacate judgment distinguished from other motions

A motion to open or vacate a judgment has been distinguished from those for a new trial or to strike the judgment.
Statutes or rules regulating or limiting motions for a new trial do not apply to motions to open or vacate a judgment,1 since
the motions are independent.2
Postjudgment relief may not be secured by a motion to dismiss the judgment or order; unlike a claim, a judgment may not be
dismissed, but must be vacated.3 A petition to strike a judgment and a petition to open a judgment are separate and distinct
remedies and not interchangeable.4 While a motion to strike a judgment is directed to defects on the face of the record, a motion
to open a judgment addresses irregularities predicated on matters outside the record.5
Footnotes
1 Cal.—In re Marriage of Micalizio, 199 Cal. App. 3d 662, 245 Cal. Rptr. 673 (4th Dist. 1988).
Ky.—Union Gas & Oil Co. v. Kelly, 194 Ky. 153, 238 S.W. 384 (1922).
2 Ala.—Otto v. Guthrie, 475 So. 2d 856 (Ala. 1985).
3 Okla.—Reeds v. Walker, 2006 OK 43, 157 P.3d 100 (Okla. 2006).

§ 396. Motion to open or vacate judgment distinguished..., 49 C.J.S. Judgments §...
4 Pa.—U.S. Bank National Association for Pennsylvania Housing Finance Agency v. Watters, 2017 PA Super
110, 163 A.3d 1019 (2017).
5 Pa.—National Recovery Systems v. Monaghan, 322 Pa. Super. 183, 469 A.2d 244 (1983).

Works.

§ 397. Grounds on which courts may open or vacate..., 49 C.J.S. Judgments §...
Judgments
Francis C. Amendola, J.D.; John Bourdeau, J.D.; James Buchwalter, J.D.; Paul M. Coltoff, J.D; Cecily
Fuhr, J.D.; Lonnie E. Griffith, Jr., J.D.; Glenda K. Harnad, J.D.; Janice Holben, J.D.; John Kimpflen,
J.D.; William Lindsley, J.D.; Kristina E. Music Biro, J.D., of the staff of the National Legal Research
Group, Inc.; Thomas Muskus, J.D.; Sally J.T. Necheles, J.D., LL.M.; Jeffrey J. Shampo, J.D.; Kimberly C.
2. Right to and Grounds for Relief
a. General Principles and Grounds
§ 397. Grounds on which courts may open or vacate judgments, generally

Grounds on which courts may open or vacate judgments are generally specified in statutes
or rules authorizing that action.
Under statutes and rules of civil procedure, the courts may grant relief from judgments on various
grounds,1 subsequently described.2 To acquire relief from a judgment, the moving party must
be entitled to relief under one of the grounds described in the applicable statute or rule.3 A rule
permitting relief from final judgment may not be used by a party who is merely dissatisfied with
the results of the case, but only in those cases that meet one or more of the criteria specified in
the rule.4 While vacating a judgment provides the ultimate safety valve to avoid injustice, the

party seeking that relief bears the burden of establishing sufficient grounds.5 However, there is
authority under one state's statute that in addition to the statutory grounds, a court may vacate its
own judgment for sufficient reason and in the interests of substantial justice.6
The right to be relieved of a judgment is not absolute,7 but that remedy is allowed in very limited
circumstances.8 In general, a judgment once entered should not be easily or lightly opened or
vacated except for cogent reasons,9 and relief may be granted on the grounds stated in such a rule
sparingly.10 Although courts have broad discretion in granting or denying motions for relief from
judgment, that discretion is bounded by the requirement that the party seeking relief demonstrate
unique and compelling circumstances which justify relief.11 Absence of prejudice to the opposing
party is not itself sufficient to justify relief from a judgment.12
Footnotes
1 Fla.—Sanchez v. Sanchez, 285 So. 3d 969 (Fla. 3d DCA 2019).
2 §§ 399 et seq.
3 N.Y.—Wells Fargo Bank, N.A. v. Abakporo, 186 A.D.3d 652, 129 N.Y.S.3d 430 (2d Dep't 2020).
Ohio—Hussain v. Hussain, 2020-Ohio-531, 152 N.E.3d 365 (Ohio Ct. App. 12th Dist. Butler County 2020).
Enumerated extraordinary circumstances
W. Va.—Jividen v. Jividen, 212 W. Va. 478, 575 S.E.2d 88 (2002).
Fundamental fairness
A rule authorizing a court to exercise its revisory power over judgments in cases of fraud, mistake, or
irregularity does not provide for amendment of an enrolled judgment on the ground of fundamental fairness.
Md.—Thacker v. Hale, 146 Md. App. 203, 806 A.2d 751 (2002).
Action for nullity
Statutory grounds for an action for nullity of a judgment are exclusive.
La.—Ellis v. Louisiana Ins. Guar. Ass'n, 606 So. 2d 800 (La. Ct. App. 3d Cir. 1992), on reh'g, (June 16,
1992) and writ denied, 608 So. 2d 152 (La. 1992).
4 Tenn.—NCNB Nat. Bank of North Carolina v. Thrailkill, 856 S.W.2d 150 (Tenn. Ct. App. 1993).
Not merely because unhappy with judgment
Miss.—Desoto County v. Standard Construction Company, Inc., 283 So. 3d 102 (Miss. 2019).
5 N.D.—Laib v. Laib, 2008 ND 129, 751 N.W.2d 228 (N.D. 2008).
Denial in absence of showing
Denying a motion to set aside or reconsider an order granting summary judgment was not an abuse of
discretion, where the movant failed to show an intervening change in the controlling law, the availability of
new evidence, or the need to correct a clear error of law or prevent manifest injustice.
Miss.—Brooks v. Roberts, 882 So. 2d 229 (Miss. 2004).
6 N.Y.—Wells Fargo Bank, N.A. v. Abakporo, 186 A.D.3d 652, 129 N.Y.S.3d 430 (2d Dep't 2020).
As to relief under a catch-all provision, see §§ 423 et seq.
7 Minn.—Armstrong v. Heckman, 409 N.W.2d 27 (Minn. Ct. App. 1987).
8 Wis.—Sukala v. Heritage Mut. Ins. Co., 2005 WI 83, 282 Wis. 2d 46, 698 N.W.2d 610 (2005).
9 Ark.—Dent v. Adkisson, 203 Ark. 176, 157 S.W.2d 16 (1941).

Cal.—Spahn v. Spahn, 70 Cal. App. 2d 791, 162 P.2d 53 (2d Dist. 1945).

Fla.—McGinnis v. Kanevsky, 564 So. 2d 1141 (Fla. 3d DCA 1990) (disapproved of on other grounds by,
Hayes v. Guardianship of Thompson, 952 So. 2d 498 (Fla. 2006)).
N.M.—Board of Com'rs of Quay County v. Wasson, 1933-NMSC-076, 37 N.M. 503, 24 P.2d 1098 (1933).
Pa.—Ferguson v. O'Hara, 286 Pa. 37, 132 A. 801 (1926).
S.C.—Anderson v. Toledo Scale Co., 192 S.C. 300, 6 S.E.2d 465 (1939).
Wash.—In re Upton's Estate, 199 Wash. 447, 92 P.2d 210, 123 A.L.R. 1220 (1939).
Wyo.—Application of Beaver Dam Ditch Co., 54 Wyo. 459, 93 P.2d 934 (1939).
10 N.J.—In re Guardianship of J.N.H., 172 N.J. 440, 799 A.2d 518 (2002).
11 Idaho—Johnson v. Department of Labor, 165 Idaho 827, 453 P.3d 261 (2019).
12 Alaska—Dickerson v. Goodman, 161 P.3d 1205 (Alaska 2007).

Cal.—Russell v. Trans Pacific Group, 19 Cal. App. 4th 1717, 24 Cal. Rptr. 2d 274 (3d Dist. 1993).
End of Document © 2021 Thomson Reuters. No claim to original U.S.

Government Works.

§ 398. Opening judgment on grounds previously raised in action, 49 C.J.S. Judgments §...
Judgments
§ 398. Opening judgment on grounds previously raised in action

In general, a judgment will not be opened on grounds that had or could have previously been
raised in the action.
A proceeding for relief from a judgment generally may not be sustained on any legal theory
or ground that had been considered1 or might have been advanced or pleaded in defense to the
action2 with proper care and diligence.3 Within this rule are included various defenses, such as the
statute of limitations,4 payment,5 want or failure of consideration,6 and illegality of the contract or

transaction out of which the alleged cause of action arose.7 However, public policy may require
the opening of the judgment to permit the introduction of such a defense.8
Under some authority, a court has the discretion to consider a new legal argument in a motion
for relief from judgment, but is not required to do so.9 Where the pleading and trial of a defense
is prevented by fraud, accident, or other cause for which the moving party is not to blame, the
judgment may be opened or vacated to allow the defense.10
Subsequent changes in law.
A judgment will not be opened or vacated on the ground that a statute becoming effective after
the judgment would have warranted a different decision, where that statute does not purport to
be curative.11 Similarly, relief from a judgment will not be granted by reason of a change in the
law, resulting from a subsequent decision by a higher court reaching a contrary conclusion.12 The
reason for the rule is that there must be an end to litigation, and it is the policy of the law to prohibit,
so far as possible, the further contest of an issue once judicially decided and to accord finality
to judgments.13 However, a motion to open a judgment has been allowed where the higher court
subsequently made a contrary decision on the identical facts.14
Footnotes
1 Mont.—Higgins v. Vortex Fishing Systems, Inc., 2007 MT 5N, 337 Mont. 529, 168 P.3d 700 (2007).
2 Ala.—Steele v. Rosenfeld, LLC, 936 So. 2d 488 (Ala. 2005).

Ark.—Williams v. First Unum Life Ins. Co., 358 Ark. 224, 188 S.W.3d 908 (2004).
Ga.—Stripling v. Farmers & Merchants Bank, 175 Ga. App. 75, 332 S.E.2d 373 (1985).
Ind.—City of Hammond, Lake County v. Northern Indiana Public Service Co., 506 N.E.2d 49 (Ind. Ct.
App. 1987).
N.Y.—Fidelity New York, FSB v. Hanover Companies, Inc., 162 A.D.2d 582, 556 N.Y.S.2d 769 (2d Dep't
1990).
N.D.—First Nat. Bank of Crosby v. Bjorgen, 389 N.W.2d 789 (N.D. 1986).
R.I.—Brown v. Amaral, 460 A.2d 7 (R.I. 1983).
3 Ga.—Capital Associates, Inc. v. Keoho, 173 Ga. App. 627, 327 S.E.2d 586 (1985).
Ill.—Gliwa v. Washington Polish Loan & Bldg. Ass'n, 310 Ill. App. 465, 34 N.E.2d 736 (1st Dist. 1941).
Ky.—Childers v. Potter, 291 Ky. 478, 165 S.W.2d 3 (1942).
La.—Williams v. New York Fire and Marine Ins. Co., 427 So. 2d 938 (La. Ct. App. 4th Cir. 1983).
Mo.—Bodine v. Farr, 353 Mo. 206, 182 S.W.2d 173 (1944).
Okla.—Staples v. Jenkins, 1936 OK 718, 178 Okla. 186, 62 P.2d 504 (1936).
S.C.—Costa and Sons Const. Co., Inc. v. Long, 306 S.C. 465, 412 S.E.2d 450 (Ct. App. 1991).
Utah—Logan City v. Utah Power & Light Co., 86 Utah 340, 16 P.2d 1097 (1932), adhered to, 86 Utah 354,
44 P.2d 698 (1935).
Party belatedly discovered law raised in motion

R.I.—Jackson v. Medical Coaches, 734 A.2d 502 (R.I. 1999).

4 Pa.—Bedell v. Oliver H. Bair Co., 104 Pa. Super. 146, 158 A. 651 (1932).
5 N.C.—Council v. Willis, 66 N.C. 359, 1872 WL 2229 (1872).
6 Ill.—Blake v. State Bank of Freeport, 178 Ill. 182, 52 N.E. 957 (1899).
7 Okla.—Dial v. Kirkpatrick, 1933 OK 614, 168 Okla. 21, 31 P.2d 591, 95 A.L.R. 1263 (1933).
8 Okla.—Dial v. Kirkpatrick, 1933 OK 614, 168 Okla. 21, 31 P.2d 591, 95 A.L.R. 1263 (1933).
Pa.—Nescopeck Nat. Bank v. Smith, 108 Pa. Super. 553, 165 A. 526 (1933).
9 Ala.—Steele v. Rosenfeld, LLC, 936 So. 2d 488 (Ala. 2005).
10 Ohio—Buckeye State Bldg. & Loan Co. v. Ryan, 24 Ohio App. 481, 157 N.E. 811 (1st Dist. Clermont
County 1926).
As to opening default judgments to hear defenses where the default is excused, see § 536.
11 Wash.—Pacific Tel. & Tel. Co. v. Henneford, 199 Wash. 462, 92 P.2d 214 (1939).
As to whether a motion may be brought under the "catch-all" provision on this basis, see § 426.
12 Cal.—Sontag Chain Stores Co. v. Superior Court in and for Los Angeles County, 18 Cal. 2d 92, 113 P.2d
689 (1941).
Parties chose not to litigate federal issue
A U.S. Supreme Court decision was not a sufficient basis to vacate a final state court judgment, where
the matter of first impression resolved by the Supreme Court was not before the trial court because the
proponents deliberately chose not to litigate the constitutional issue in state court, and the parties never
agreed to abide by the federal cases.
Colo.—Davidson v. McClellan, 16 P.3d 233 (Colo. 2001).
13 Cal.—Sontag Chain Stores Co. v. Superior Court in and for Los Angeles County, 18 Cal. 2d 92, 113 P.2d
689 (1941).
As to whether a change in the law justifies modifying a judgment providing for prospective relief, see § 401.
14 La.—Townley v. Pomes, 194 La. 730, 194 So. 763 (1940).

Government Works.

§ 399. Invalidity of judgment as ground for vacating it, 49 C.J.S. Judgments § 399
Judgments
§ 399. Invalidity of judgment as ground for vacating it

West's Key Number Digest, Judgment 346, 347, 349
Invalidity of the judgment of such a nature as to render it void is a ground for vacating it,
and a court generally has a nondiscretionary duty to do so.
A void judgment may be vacated.1 The authority to vacate a void judgment is an inherent power
of the court and is not derivative of a rule allowing relief from judgment,2 and such authority may
be exercised where the invalidity is apparent on the face of the record.3 A judgment is void, thus
warranting relief, when a court's action is without jurisdiction or constitutes a violation of due
process.4 However, there is also authority that a judgment is not void on jurisdictional grounds

when the party had an opportunity to contest those grounds but failed to do so, and an objection
based on lack of subject matter jurisdiction should have been brought by a timely appeal rather
than a motion for relief from the judgment.5
While under some rules, the court has discretion to vacate a void judgment,6 generally it is the
court's duty to annul an invalid judgment,7 and the court does not have any discretion.8 The court's
sole task is to determine the validity of the judgment.9 Since, for the purpose of a motion for
relief from a judgment, a void judgment is one that, from its inception, was a complete nullity and
without legal effect,10 it does not matter how the objection is brought to the court's attention, since
a void judgment does not have efficacy at any time.11 An application to vacate a void judgment
does not make it effectual for any purpose.12
A trial court clearly abuses its discretion when it vacates a judgment after its plenary power
expires.13 Even when a judgment is void, the trial court does not retain plenary power to vacate
the judgment at any time.14
Footnotes
1 D.C.—Butler v. Harden, 131 A.3d 877 (D.C. 2016), as amended, (Feb. 18, 2016).
Kan.—In re Marriage of Johnston, 54 Kan. App. 2d 516, 402 P.3d 570 (2017), review denied, (Feb. 26,
2018).
2 Ohio—Tax Ease Ohio, LLC v. Richards, 2019-Ohio-5059, 150 N.E.3d 378 (Ohio Ct. App. 11th Dist. Portage
County 2019).
3 Ala.—Boykin v. Law, 946 So. 2d 838 (Ala. 2006).
Idaho—Occidental Life Ins. Co. v. Niendorf, 55 Idaho 521, 44 P.2d 1099 (1935).
Mo.—McFadden v. Mullins, 234 Mo. App. 1056, 136 S.W.2d 74 (1940).
Wyo.—Goss v. Goss, 780 P.2d 306 (Wyo. 1989).
4 Ala.—Jefferson County Bd. of Health v. Birmingham Hide & Tallow Co., Inc., 38 So. 3d 714 (Ala. 2009).
Alaska—Gross v. Wilson, 424 P.3d 390 (Alaska 2018).
Ariz.—Ruffino v. Lokosky, 245 Ariz. 165, 425 P.3d 1108 (Ct. App. Div. 1 2018), review denied, (Dec. 13,
2018).
Colo.—Murray v. Bum Soo Kim, 2019 COA 163, 461 P.3d 624 (Colo. App. 2019), cert. denied, 2020 WL
2126712 (Colo. 2020).
Mo.—Hooks v. MHS Hospitality Group, LLC, 526 S.W.3d 136 (Mo. Ct. App. W.D. 2017).
S.C.—Sanders v. Smith, 431 S.C. 605, 848 S.E.2d 604 (Ct. App. 2020).
Wash.—Rabbage v. Lorella, 5 Wash. App. 2d 289, 426 P.3d 768 (Div. 1 2018).
5 Vt.—Zambito-Austin v. Jordan, 169 Vt. 589, 732 A.2d 747 (1999).
6 Wis.—Datronic Rental Corp. v. DeSol, Inc., 164 Wis. 2d 289, 474 N.W.2d 780 (Ct. App. 1991).
7 Ariz.—Ruffino v. Lokosky, 245 Ariz. 165, 425 P.3d 1108 (Ct. App. Div. 1 2018), review denied, (Dec. 13,
2018).
Fla.—Rodriguez v. Thompson, 235 So. 3d 986 (Fla. 2d DCA 2017).
Me.—Fitzpatrick v. McCrary, 2018 ME 48, 182 A.3d 737 (Me. 2018).

Wash.—Rabbage v. Lorella, 5 Wash. App. 2d 289, 426 P.3d 768 (Div. 1 2018).
8 Mass.—Dumas v. Tenacity Construction Incorporated, 95 Mass. App. Ct. 111, 121 N.E.3d 711 (2019).
Miss.—Pritchard v. Pritchard, 282 So. 3d 809 (Miss. Ct. App. 2019).
Wash.—Sutey v. T26 Corporation, 13 Wash. App. 2d 737, 466 P.3d 1096 (Div. 1 2020), review denied, 2020
WL 7060041 (Wash. 2020).
Wyo.—Tarter v. Tarter, 2020 WY 80, 466 P.3d 829 (Wyo. 2020).
As to the court's discretion when deciding whether to vacate a judgment, generally, see § 467.
Unqualified right
If a judgment is void, the movant has an unqualified right to relief on a motion to vacate.
R.I.—Kildeer Realty v. Brewster Realty Corp., 826 A.2d 961 (R.I. 2003).
9 N.D.—Roe v. Doe, 2002 ND 136, 649 N.W.2d 566 (N.D. 2002).
10 Colo.—First Nat. Bank of Telluride v. Fleisher, 2 P.3d 706 (Colo. 2000).

Kan.—State v. Davis, 281 Kan. 169, 130 P.3d 69 (2006) (overruled on other grounds by, State v. Ford, 302
Kan. 455, 353 P.3d 1143 (2015)).
11 R.I.—Flynn v. Al-Amir, 811 A.2d 1146 (R.I. 2002).
12 Kan.—Morris v. Winderlin, 92 Kan. 935, 142 P. 944 (1914).
13 § 394.

Government Works.

§ 400. Invalidity of judgment as ground for vacating..., 49 C.J.S. Judgments §...
Judgments
§ 400. Invalidity of judgment as ground for vacating it

—Failure or defects relating to service of process

West's Key Number Digest, Judgment 350 to 352
A judgment may be vacated on the ground that it is void due to a failure to serve process, or
because the process or service was fatally defective.
Since the validity of a judgment depends on the existence and sufficiency of the process or notice
on which it is based,1 a judgment may be vacated on the ground that the defendant did not receive
notice of the action, either because of a failure to serve process, or the process or service was
fatally defective.2 This rule has been applied in cases involving notice by publication.3

§ 400. Invalidity of judgment as ground for vacating..., 49 C.J.S. Judgments §...
When a judgment is obtained based on a false return of service, the court has inherent power to
set it aside.4 However, it has also been held that since the failure or defect must be apparent on the
face of the record,5 a judgment will not be vacated on the claim of a false return of service, since
the return is conclusive,6 unless there is an irreconcilable conflict in the judgment roll.7
In any event, a judgment will not be vacated for mere clerical errors, omissions, or irregularities
in the process not affecting jurisdiction, especially where defendant had actual notice of the
commencement of the action8 or the objections to service are waived by an appearance.9 However,
a judgment entered without the service of process on the unauthorized appearance of an attorney
may be vacated,10 provided that the defendant did not accept or ratify the attorney's unauthorized
act, by acquiescing in it or failing to object, with full knowledge.11
Footnotes
1 §§ 26 et seq.
2 Alaska—Roman v. Karren, 461 P.3d 1252 (Alaska 2020).

Mo.—S.S. by and through T.R.S. v. K.E.J., 607 S.W.3d 266 (Mo. Ct. App. E.D. 2020).
Ohio—Whitright v. Whitright, 2019-Ohio-326, 129 N.E.3d 922 (Ohio Ct. App. 11th Dist. Geauga County
2019), appeal not allowed, 155 Ohio St. 3d 1469, 2019-Ohio-2100, 122 N.E.3d 1294 (2019).
Pa.—Digital Communications Warehouse, Inc. v. Allen Investments, LLC, 2019 PA Super 341, 223 A.3d
278 (2019).
Effect of plaintiff's compliance with rule
A defendant presenting a motion to vacate, who supplied an uncontradicted sworn statement that she never
received service of the complaint, was entitled to have the judgment against her vacated, even if the plaintiff
complied with the requirements of a civil rule that service be made at an address where it would be reasonably
anticipated that the defendant would receive it.
Ohio—Rafalski v. Oates, 17 Ohio App. 3d 65, 477 N.E.2d 1212 (8th Dist. Cuyahoga County 1984).
3 Ga.—Green v. Green, 263 Ga. 551, 437 S.E.2d 457 (1993).
Pa.—Fairmont Corp. v. Eisner, 333 Pa. Super. 182, 481 A.2d 1366 (1984).
4 Cal.—County of San Diego v. Gorham, 186 Cal. App. 4th 1215, 113 Cal. Rptr. 3d 147 (4th Dist. 2010).
5 Ky.—Horton v. Horton, 263 Ky. 413, 92 S.W.2d 373 (1936).

Okla.—Good v. First Nat. Bank, 1923 OK 14, 88 Okla. 110, 211 P. 1051 (1923).
6 Pa.—Liberal Credit Clothing Co. v. Tropp, 135 Pa. Super. 53, 4 A.2d 565 (1939).
7 Okla.—Babb v. National Life Ass'n, 1939 OK 2, 184 Okla. 273, 86 P.2d 771 (1939).
8 Fla.—Seiton v. Miami Roofing & Sheet Metal, 151 Fla. 631, 10 So. 2d 428 (1942).
9 Kan.—Home Owners' Loan Corporation v. Clogston, 154 Kan. 257, 118 P.2d 568 (1941).
10 Fla.—St. Lucie Estates v. Palm Beach Plumbing Supply Co., 101 Fla. 205, 133 So. 841 (1930).
Okla.—Myers v. Chamness, 1924 OK 614, 102 Okla. 131, 228 P. 988 (1924).
11 Ga.—Jackson v. Jackson, 199 Ga. 716, 35 S.E.2d 258 (1945).

Government Works.

§ 401. Vacating judgments having prospective application, 49 C.J.S. Judgments § 401
Judgments
§ 401. Vacating judgments having prospective application

Some rules provide relief from a judgment to those who have been prospectively subjected
to circumstances that they did not have an opportunity to foresee or control, making it
inequitable to enforce the judgment.
Some rules allow relief from a judgment for which it is no longer equitable that the judgment
have prospective application.1 Such a rule is designed to provide relief to those who have been
prospectively subjected to circumstances that they did not have an opportunity to foresee or control,
and is not meant to offer a party a means to negate a prior finding that the party could have
reasonably prevented.2

A motion under such a rule requires a showing that it is no longer equitable to enforce a prospective
judgment as written.3 To outweigh the public interest in the finality of judgments, a party moving
to vacate a judgment on this ground must demonstrate that events have occurred subsequent to
the entry of a judgment that, absent the relief requested, will result in extreme and unexpected
hardship.4 A change in the law may constitute a basis for relief.5 However, the mere fact that the
law has changed since the judgment was entered or that a ruling will have future collateral estoppel
effect (something obviously common to many rulings) does not provide the requisite prospective
effect necessary for relief.6 There must be some new postjudgment fact or occurrence that requires
the trial court, in equity, to recede from its prior order or judgment.7 The rule does not allow a
party to retry a case merely because the judgment provides equitable relief and the party has found
additional evidence.8
A trial court had jurisdiction to reopen a judgment in an easement case, based on the subsequent
acts of the servient owners that were not addressed in the prior judgment.9 An owner of a building
could seek relief from a judgment authorizing the city to raze it as a safety hazard, where the
owner had made repairs and alleged that prospective application of that judgment had become
inequitable.10
Retroactive relief from a judgment is not available under the rule allowing relief from judgment
when it is no longer equitable that the judgment should have prospective application.11 A judgment
for future damages, such as future medical expenses, comes within this principle, since a judgment
for money damages, even if not yet enforced, does not have prospective application, but "closes
the book" on a past wrong.12
Footnotes
1 Idaho—Thompson v. Thompson, 162 Idaho 918, 407 P.3d 232 (Ct. App. 2017).
Ind.—City of Indianapolis v. Tichy, 122 N.E.3d 841 (Ind. Ct. App. 2019).
Mo.—State v. Howard, 598 S.W.3d 146 (Mo. Ct. App. W.D. 2020), reh'g and/or transfer denied, (Mar. 3,
2020) and transfer denied, (Apr. 28, 2020).
2 Ohio—Cuyahoga Support Enforcement Agency v. Guthrie, 84 Ohio St. 3d 437, 1999-Ohio-362, 705 N.E.2d
318 (1999).
3 Idaho—Devine v. Cluff, 111 Idaho 476, 725 P.2d 181 (Ct. App. 1986).
4 N.J.—F.B. v. A.L.G., 176 N.J. 201, 821 A.2d 1157 (2003).
5 Mass.—Atlanticare Medical Center v. Division of Medical Assistance, 485 Mass. 233, 149 N.E.3d 343
(2020).
6 Alaska—Powell v. State, 460 P.3d 787 (Alaska Ct. App. 2020).

7 Fla.—Schmidt v. Nipper, 287 So. 3d 1289 (Fla. 1st DCA 2020).
8 Fla.—Schmidt v. Nipper, 287 So. 3d 1289 (Fla. 1st DCA 2020).
9 S.D.—Block v. Drake, 2004 SD 72, 681 N.W.2d 460 (S.D. 2004).
10 Minn.—City of Barnum v. Sabri, 657 N.W.2d 201 (Minn. Ct. App. 2003).
11 Alaska—Ferguson v. State, Dept. of Revenue, Child Support Enforcement Div. ex rel. P.G., 977 P.2d 95
(Alaska 1999).
12 Ky.—Alliant Hospitals, Inc. v. Benham, 105 S.W.3d 473 (Ky. Ct. App. 2003).

Government Works.

§ 402. Vacating judgment on ground of fraud, generally, 49 C.J.S. Judgments § 402
Judgments
b. Fraud, Collusion, or Misconduct
§ 402. Vacating judgment on ground of fraud, generally

Courts have the power to vacate a judgment on the ground of fraud or collusion in obtaining
the judgment.
The fact that a judgment was obtained through fraud is generally a sufficient reason for granting
relief from it.1 Some statutes or rules of civil procedure confer this power or regulate its exercise,2
although courts of record generally possess this inherent common-law power, which does not
depend on legislation.3 The power is limited4 to exceptional circumstances.5 The court must
exercise discretion in determining whether a party is entitled to relief from a judgment on this
ground.6

The fraudulent conduct must cause the entry of the judgment such that the losing party was
prevented from fully and fairly presenting its case or defense.7 Thus, the moving party bears a
heavy burden of showing the most egregious conduct involving a corruption of the judicial process
itself.8 The policy favoring finality and conclusiveness of judgments can be outweighed only by a
showing that the jurisdiction of the court has been imposed upon, or that the prevailing party, by
some extrinsic or collateral fraud, has prevented a fair submission of the controversy.9
While there is authority that actual fraud or collusion is not necessary,10 and that relief can be based
on actual or constructive fraud,11 it has elsewhere been held that actual fraud, as distinguished
from constructive fraud, is essential.12
The existence of fraud for the purpose of opening a judgment is a question of fact.13 A party who
seeks to open a judgment based on fraud must show diligence in trying to discover and expose the
fraud,14 and that the failure to secure a just decision was not attributable to the movant's fault.15
If a party cannot show that fraud, misrepresentation, or misconduct substantially prejudiced the
party's presentation of the case, a court should not set aside an otherwise final judgment.16
Misrepresentation.
The fraud that may provide a basis for relief from a judgment involves misrepresentation that is
material and induces reasonable reliance,17 and usually requires specific knowledge and intent by
the wrongdoer,18 although negligent misrepresentation has also been recognized as a ground for
vacating a judgment.19 The movant must show how the misrepresentation affected the outcome
of the case.20 A single finding of misrepresentation or concealment rising to the level of fraud is a
sufficient basis for opening a judgment.21 However, a party who is aware, or through reasonable
diligence should be aware, of the inaccuracy of a statement made by the other party may not claim
that one has relied on the misrepresentation so as to justify setting aside a judgment for fraud.22
Collusion.
A judgment may be vacated for misrepresentations or fraudulent collusion between an attorney

and the opposing party or counsel,23 or for fraudulent collusion between some of the parties to
the action, or between the counsel in the case, injuring the just rights of the others.24 A judgment

may also be opened for such constructive fraud as is implied in the attorney's attempt to act for
both parties.25
Footnotes
1 Ariz.—In re McQuillen v. Hufford, 249 Ariz. 69, 466 P.3d 380 (Ct. App. Div. 1 2020).
Fla.—Pierre v. Jonassaint, 212 So. 3d 1131 (Fla. 3d DCA 2017).
N.Y.—Citimortgage, Inc. v. Guarino, 42 Misc. 3d 962, 978 N.Y.S.2d 646 (Sup 2014).
W. Va.—Phillips v. Stear, 236 W. Va. 702, 783 S.E.2d 567 (2016).
Fraud as within a statute authorizing opening a judgment for surprise, mistake, or excusable neglect, see
§ 416.
Equitable relief on the ground of fraud is discussed in §§ 658 et seq.
Collateral attack on the ground of fraud is discussed in § 722.
Fraud or ill practices
La.—Succession of Schulz, 622 So. 2d 693 (La. Ct. App. 4th Cir. 1993), writ denied, 631 So. 2d 1161 (La.
1994).
A.L.R. Library
Vacating or Opening Judgment by Confession on Ground of Fraud, Illegality, or Mistake, 91 A.L.R.5th 485.
2 Ga.—Bagwell v. Parker, 182 Ga. App. 313, 355 S.E.2d 463 (1987).
Kan.—Beal v. Rent-A-Center of America, Inc., 13 Kan. App. 2d 375, 771 P.2d 553 (1989).
Ky.—Buttermore v. Hensley, 267 Ky. 669, 103 S.W.2d 68 (1937).
Mont.—Witbart v. Witbart, 204 Mont. 446, 666 P.2d 1217 (1983).
3 Cal.—Pittman v. Beck Park Apartments Ltd., 20 Cal. App. 5th 1009, 230 Cal. Rptr. 3d 113 (2d Dist. 2018).
N.H.—Conant v. O'Meara, 167 N.H. 644, 117 A.3d 692 (2015).
N.Y.—Boyne v. Boyne, 63 Misc. 3d 684, 95 N.Y.S.3d 761 (Fam. Ct. 2019).
Three methods
There are three methods by which a litigant may attack a judgment on grounds of fraud on the court: file a
motion for relief from the judgment, initiate an independent action, and invoke the court's inherent power.
Ind.—Stonger v. Sorrell, 776 N.E.2d 353 (Ind. 2002).
4 Or.—Wimber v. Timpe, 109 Or. App. 139, 818 P.2d 954 (1991).
5 N.D.—Terry v. Terry, 2002 ND 2, 638 N.W.2d 11 (N.D. 2002).

Only in the presence of extreme degree of fraud
6 Ala.—Continental Eagle Corp. v. Mokrzycki, 611 So. 2d 313 (Ala. 1992).
La.—State v. Batchelor, 597 So. 2d 1132 (La. Ct. App. 1st Cir. 1992), writ denied, 604 So. 2d 964 (La. 1992).
Balancing
In considering whether to set aside a judgment based on fraud, there is a balance between the interests of
finality and the unsavory spectacle of the law aiding one who acts fraudulently.
7 Wash.—Sutey v. T26 Corporation, 13 Wash. App. 2d 737, 466 P.3d 1096 (Div. 1 2020), review denied, 2020
WL 7060041 (Wash. 2020).
8 Del.—Anderson v. State, 21 A.3d 52 (Del. 2011).
9 Md.—Pelletier v. Burson, 213 Md. App. 284, 73 A.3d 1180 (2013).
10 Ark.—Dickson v. Fletcher, 361 Ark. 244, 206 S.W.3d 229 (2005).

La.—Clulee v. Louisiana Materials Co., Inc., 590 So. 2d 780 (La. Ct. App. 5th Cir. 1991), writ denied, 594
So. 2d 1323 (La. 1992).
Ohio—Pengelly v. Thomas, 79 Ohio App. 53, 34 Ohio Op. 449, 46 Ohio L. Abs. 481, 65 N.E.2d 897 (2d
Dist. Franklin County 1946).
In statutory proceeding to vacate

Okla.—Patel v. OMH Medical Center, Inc., 1999 OK 33, 987 P.2d 1185 (Okla. 1999).
11 Ind.—In re Rueth Development Co., 976 N.E.2d 42 (Ind. Ct. App. 2012).
12 Mo.—First Nat. Bank & Trust Co. of King City v. Bowman, 322 Mo. 654, 15 S.W.2d 842 (1929).
13 Conn.—Cromwell Commons Associates v. Koziura, 17 Conn. App. 13, 549 A.2d 677 (1988).
14 Conn.—Wells Fargo Bank, N.A. v. Tarzia, 186 Conn. App. 800, 201 A.3d 511 (2019).
15 Neb.—Eihusen v. Eihusen, 272 Neb. 462, 723 N.W.2d 60 (2006).
16 Ind.—Outback Steakhouse of Florida, Inc. v. Markley, 856 N.E.2d 65 (Ind. 2006).
17 Ohio—LaBonte v. LaBonte, 61 Ohio App. 3d 209, 572 N.E.2d 704 (4th Dist. Meigs County 1988).
18 Wash.—Sarvis v. Land Resources, Inc., 62 Wash. App. 888, 815 P.2d 840 (Div. 1 1991).
19 Alaska—Harris v. Westfall, 90 P.3d 167 (Alaska 2004).
20 Haw.—Moyle v. Y & Y Hyup Shin, Corp., 118 Haw. 385, 191 P.3d 1062 (2008), as amended on other
grounds, (Sept. 11, 2008).
Mo.—Blackstock v. Kohn, 994 S.W.2d 947 (Mo. 1999).
21 Mo.—Hewlett v. Hewlett, 845 S.W.2d 717 (Mo. Ct. App. W.D. 1993).
22 Mo.—Blackstock v. Kohn, 994 S.W.2d 947 (Mo. 1999).
23 Neb.—In re Estate of West, 226 Neb. 813, 415 N.W.2d 769 (1987).
Tenn.—Smith v. Miller, 42 S.W. 182 (Tenn. Ch. App. 1897).
Wyo.—Bank of Chadron v. Anderson, 6 Wyo. 518, 48 P. 197 (1897).
24 Okla.—Stout v. Derr, 1935 OK 253, 171 Okla. 132, 42 P.2d 136 (1935) (disapproved of on other grounds
by, Patel v. OMH Medical Center, Inc., 1999 OK 33, 987 P.2d 1185 (Okla. 1999)).
Tex.—Ferguson v. Ferguson, 98 S.W.2d 847 (Tex. Civ. App. Eastland 1936).
25 N.C.—Patrick v. Bryan, 202 N.C. 62, 162 S.E. 207 (1932).

Government Works.

Citing References (30)
Title Date Type Depth

Nov. 05, 1957 Case
1. Black v. Industrial Commission of Ariz.
317 P.2d 553, 555 , Ariz.
Workmen's compensation proceeding. The claimant asserted that she was
lawful widow of deceased employee on theory that at the time of their marriage
he was divorced from his...
2. State ex rel. Southeast Rural Fire Protection Dist. v. Grossman May 12, 1972 Case
197 N.W.2d 398, 401 , Neb.
In mandamus action relating to merger of fire protection districts, intervenors
appealed from order of the District Court of Lancaster County, Boyles, J.,
overruling their motion...
3. Carmody Wait 2d New York Practice with Forms s 63:244, § 63:244. 2021 Other —
Particular circumstances as constituting fraud, misrepresentation, or Secondary
other misconduct of adverse party warranting relief from judgment Source
A wife, who claimed the husband had knowingly misled the wife into signing an
affidavit which averred that the husband was the legal custodian of the parties'
child so that the...
4. Cohelan on California Class Actions s 6:4, § 6:4. General rules for 2020 Other —
precertification activity and conduct—No default Secondary
Source
Because class issues still need to be resolved, a defendant who defaults
by failing to answer makes no admission in regard to the merits of class
certification. The default taken...
5. 12 Iowa Practice Series s 41:46, § 41:46. Default judgments—Setting 2021 Other —
aside default or judgment on default Secondary
Source
Rule 1.977, Iowa R. Civ. P., provides that a default or a default judgment may,
upon motion and ''for good cause shown,'' and upon such terms as the court
prescribes set aside a...
aside default or judgment on default—“Good cause” Secondary
Source
Concerning the ''good cause'' requirement of Rule 1.977, Iowa R. Civ. P., the
supreme court, in Dealers Warehouse Co. v. Wahl & Associates, stated that:
What constitutes good cause...
aside default or judgment on default—“Good cause”—“Unavoidable Secondary
casualty” Source
The ''unavoidable casualty'' ground includes the situation where the default is
set aside because it was taken in violation of a local custom and practice, such
as requiring notice...
aside default or judgment on default—“Good cause”—“Excusable Secondary
neglect” Source
In determining ''excusable neglect'' constituting good cause, the district court
should focus on five factors: Whether the defaulting party actually intended to
defend; Whether the...
9. Younger on California Motions s 26:4, § 26:4. Excusable neglect or 2020 Other —
inadvertence Secondary
Source
Variously referred to as the ''discretionary 473 motion'' or even an ''excusable
neglect motion,'' a traditional use of Code of Civil Procedure § 473(b), is to set
aside a...
© 2021 Thomson Reuters. No claim to original U.S. Government Works.


10. Younger on California Motions s 26:6, § 26:6. Mistake 2020 Other —
Secondary
''Mistake'' can also be used a bit more technically to mean ''mistake of law'' or
Source
''mistake of fact.'' Not surprisingly, the more technical and little-known a given
legal issue is,...
11. Younger on California Motions s 26:7, § 26:7. Surprise 2020 Other —
Secondary
''Surprise'' suggests a problem caused by a third party or something caused
Source
by an external force. This generally differs from party or attorney error, though
problems often occur...
12. Younger on California Motions s 26:8, § 26:8. Additional implied 2020 Other —
grounds—Fraud Secondary
Source
Fraud against the moving party will be seen as a basis for a motion to set
aside by almost any judge. Whether on a finding of ''mistake'' or as an implied
separate ground for...
grounds—Personal emergencies Secondary
Source
Similarly, family emergencies will serve, when they are serious and causally
related to the event requiring relief. (See Transit Ads, Inc. v. Tanner Motor
Livery, Limited, 270 Cal....
grounds—Attorney errors in discretionary motions Secondary
Source
Before 1988, errors by attorneys were probably the most common bases for
these motions. But now that the attorney-fault situation has its own motion—
one that must be granted in...
grounds—Client errors Secondary
Source
Many of the situations brought to a court's attention in today's discretionary
motions are in fact client errors. For example, a mistake by an uneducated
person or one not fluent...
grounds—Legal representatives, assignees Secondary
Source
The statute also provides for actions by ''legal representative[s]'' and that is
interpreted very loosely. Assignees, grantees and even insurance carriers and
intervenors have been...
17. Younger on California Motions s 26:13, § 26:13. Relationship to fast 2020 Other —
track Secondary
Source
Delay reduction can coexist with a relatively forgiving policy on Code of Civil
Procedure § 473 motions. Defaults, for example, typically occur within a few
weeks of the start of a...
18. Younger on California Motions s 26:14, § 26:14. “Terms as may be 2020 Other —
just” Secondary
Source
The court is empowered to impose conditions on the granting of the
discretionary motion. (Code of Civil Procedure § 473(b).) Most often this
means the attorney's fees and costs...
19. Younger on California Motions s 26:15, § 26:15. Attorney fault— 2020 Other —
Concept still developing Secondary
Source
The ''affidavit of attorney fault'' was introduced in 1988, and modified twice
by the legislature in the early 1990's. The statute, which is found well down in
subsection (b)'s...
Causal relationship vital to demonstrate Secondary
Source
While the statute has been called ''mandatory,'' it is only truly mandatory
when the default or dismissal was ''in fact caused by the attorney's mistake,
inadvertence, surprise, or...


21. Younger on California Motions s 26:20, § 26:20. Attorney Fault—Not 2020 Other —
just clerk-entered defaults Secondary
Source
Despite apparently restrictive language, the attorney-fault provision applies
to set aside defaults entered by the court, not just those entered by the clerk.
(Lorenz v. Commercial...
Mistake need not be “excusable” Secondary
Source
The statutory language does not use the word ''excusable'' when referring to
attorney fault. It has been held not to be a legislative oversight. Beeman v.
Burling holds that the...
Mistake of law Secondary
Source
Another unresolved question in the appellate courts about the ''mandatory''
set-aside provisions concerns attorney-fault declarations in ''mistake-of-law''
situations. (See Hanooka...
Judgment after judicial arbitration Secondary
Source
Occasionally, counsel will miscalendar or simply forget about attending
a judicial arbitration hearing (Code of Civil Procedure § 1141.10.) and an
adverse judgment occurs. Where...
25. Younger on California Motions s 26:27, § 26:27. Procedural issues— 2020 Other —
Discovery on attorney fault issue Secondary
Source
At least one case has allowed the opposing party to conduct discovery on the
issue of attorney fault. (Lorenz v. Commercial Acceptance Ins. Co., 40 Cal.
App. 4th 981, 47 Cal. Rptr....
26. Younger on California Motions s 26:28, § 26:28. Procedural issues— 2020 Other —
Sequential motions? Secondary
Source
No law forbids the filing of sequential Code of Civil Procedure § 473 motions.
There might theoretically be cases in which a discretionary motion can be
attempted and, if it is...
27. Younger on California Motions s 26:34, § 26:34. Dismissals to which 2020 Other —
mandatory motion does not apply—Failure to tax costs Secondary
Source
If a party fails to file a motion to tax costs claimed in a cost bill, the resulting
adverse judgment is similar to a default. However, Code of Civil Procedure §
473 is not...
28. Younger on California Motions s 26:45, § 26:45. Motion based on 2020 Other —
court's inherent equity power—Mega-mistakes Secondary
Source
''Mistake'' is defined as a much more major event in ''inherent powers'' cases
than in statutory ones. The cases illustrate a few real humdingers, not the least
of which was Lovato...
29. Younger on California Motions s 26:46, § 26:46. Motion based on 2020 Other —
court's inherent power to correct its own mistakes Secondary
Source
Section 473(d) states: ''The court may, upon motion of the injured party, or its
own motion, correct clerical mistakes in its judgment or orders as entered, so
as to conform to the...
30. CJS Trial s 256, § 256. Conduct of counsel 2021 Other —
CJS Trial Secondary
Source
Improper conduct by counsel is incompatible with the administration of
impartial justice. Thus, counsel must always conform his or her conduct to the
law that counsel assists in...

Table of Authorities (44)
Treatment Referenced Title Type Depth Page

Number
— 1. Anderson v. State Case — s 402
21 A.3d 52, Del.Supr., 2011
CRIMINAL JUSTICE - Selective Prosecution.
State's exercise of prosecutorial discretion in filing
habitual driving offender petition against defendant
was proper.
— 2. Bagwell v. Parker Case — s 402
355 S.E.2d 463, Ga.App., 1987
Defendants in automobile negligence case moved
to set aside default judgment. The State Court,
Fulton County, Thompson, J., granted the motion,
and plaintiff obtained a...
— 3. Bank of Chadron v. Anderson Case — s 402
48 P. 197, Wyo., 1897
Error to district court, Weston county; W. S. Metz,
Judge. Petition filed by Martin C. Anderson, after
the term, seeking for the vacation of a judgment
rendered by said court...
— Case — s 402
4. Beal v. Rent-A-Center of America, Inc.
771 P.2d 553, Kan.App., 1989
Plaintiffs appealed from order of the Wyandotte
District Court, Cordell D. Meeks, Jr., J., dismissing
actions with prejudice. The Court of Appeals,
Lewis, J., held that: (1)...
— Case — s 402+
5. Blackstock v. Kohn
994 S.W.2d 947, Mo., 1999
LEGAL SERVICES - Malpractice. Evidence
supported affirmative converse instruction
concerning professional negligence claim.
— 6. Boyne v. Boyne Case — s 402
95 N.Y.S.3d 761, N.Y.Fam.Ct., 2019
FAMILY LAW — Child Custody. Custody provisions
in foreign divorce decree, providing father had no
visitation except at mother's discretion, would not be
modified.
— Case — s 402
7. Buttermore v. Hensley
103 S.W.2d 68, Ky., 1937
Appeal from Circuit Court, Harlan County. Suit by
Dr. H. K. Buttermore and another against Rebecca
Hensley, individually and as administratrix of the
estate of William Henry...
— 8. Citimortgage, Inc. v. Guarino Case — s 402
978 N.Y.S.2d 646, N.Y.Sup., 2014
REAL PROPERTY - Mortgages and Deeds of Trust.
Judgment of mortgage foreclosure and sale would
not be vacated.


Number
— 9. Clulee v. Louisiana Materials Co., Inc. Case — s 402
590 So.2d 780, La.App. 5 Cir., 1991
Judgment debtors filed action to nullify prior
judgment against them in the amount of $39,434.41,
plus interest, costs and attorney fees. The
Twenty-Ninth Judicial District...
— 10. Conant v. O'Meara Case — s 402
117 A.3d 692, N.H., 2015
LEGAL SERVICES — Attorney Fees. Attorney's
perjury in fee dispute arbitration proceeding
amounted to fraud on court necessary to set aside
his award of unpaid fees.
— Case — s 402
11. Continental Eagle Corp. v. Mokrzycki
611 So.2d 313, Ala., 1992
Former employee brought action against former
employer and personnel director to recover
for retaliatory discharge for filing worker's
compensation claim. The Circuit Court,...
— 12. Cromwell Commons Associates v. Koziura Case — s 402
549 A.2d 677, Conn.App., 1988
Guarantor of lease terms and person holding
interest in property threatened by garnishment
moved to have stipulated judgment and judgment
lien entered by Hartford-New Britain...
— Case — s 402
13. Dickson v. Fletcher
206 S.W.3d 229, Ark., 2005
LITIGATION - Judgment. Amendment to rule on
modification of judgment applied retroactively.
— 14. Eihusen v. Eihusen Case — s 402
723 N.W.2d 60, Neb., 2006
FAMILY LAW - Judgment. Wife was not entitled to
vacate the divorce decree on grounds of fraud for
her lack of due diligence.
— 15. Ferguson v. Ferguson Case — s 402
98 S.W.2d 847, Tex.Civ.App.-Eastland, 1936
Original proceeding by Joe Lee Ferguson, termed
by relator an application for a writ of prohibition,
to restrain A. M. Ferguson and another from
prosecuting a suit in the District...
— 16. First Nat. Bank & Trust Co. of King City v. Case — s 402
Bowman
15 S.W.2d 842, Mo., 1929
Appeal from Circuit Court, Gentry County; John
M. Dawson, Judge. Action by the First National
Bank & Trust Company of King City against Louis
N. Bowman and others. From the...


Number
— 17. Flood v. Katz Case — s 402+
147 P.3d 86, Idaho, 2006
LITIGATION - Judgment. Satisfaction of judgment
was not obtained through fraud.
— 18. Harris v. Westfall Case — s 402
90 P.3d 167, Alaska, 2004
FAMILY LAW - Child Support. Child support
order obtained through misrepresentions and
inadvertence was subject to set-aside rule.
— Case — s 402
19. Hewlett v. Hewlett
845 S.W.2d 717, Mo.App. W.D., 1993
DIVORCE - Relief from Judgment. Former wife
established fraudulent representations by husband
with regard to assets, warranting setting aside of
dissolution decree.
— 20. In re Estate of West Case — s 402
415 N.W.2d 769, Neb., 1987
State Tax Commissioner petitioned to vacate
county court's inheritance tax order, which approved
calculation of inheritance tax paid to county and
resultant determination of no...
— 21. In re McQuillen v. Hufford Case — s 402
466 P.3d 380, Ariz.App. Div. 1, 2020
FAMILY LAW — Paternity. Mother and voluntary
father's fraudulent acknowledgment of paternity
could not be set aside, even though genetic testing
confirmed another father.
— Case — s 402
22. In re Rueth Development Co.
976 N.E.2d 42, Ind.App., 2012
BUSINESS ORGANIZATIONS - Partnerships.
Limited partners were not permitted to continue
dissolution as derivative action following general
partner's death.
— Case — s 402
23. LaBonte v. LaBonte
572 N.E.2d 704, Ohio App. 4 Dist., 1988
Former husband filed action seeking declaration
that he was not child's father and filed a motion for
relief from a prior divorce judgment. The Court of
Common Pleas, Juvenile...
— Case — s 402
24. Moyle v. Y & Y Hyup Shin, Corp.
191 P.3d 1062, Hawai'i, 2008
TORTS - Premises Liability. Improper instructions
were not cured by other instructions in negligence
case involving robbery and assault at club.


Number
— Case — s 402
25. Outback Steakhouse of Florida, Inc. v.
Markley
856 N.E.2d 65, Ind., 2006
TORTS - Judgment. Discovery violations by injured
plaintiffs' attorney constituted misconduct entitling
restaurant to relief from judgment.
— Case — s 402+
26. Patel v. OMH Medical Center, Inc.
987 P.2d 1185, Okla., 1999
LITIGATION - Judgment. Either extrinsic or intrinsic
fraud may justify vacation of judgment.
— 27. Patrick v. Bryan Case — s 402
162 S.E. 207, N.C., 1932
Appeal from Superior Court, Buncombe County;
Stack, Judge. Action by Flora Patrick, by her next
friend, J. Weston Michal, against A. M. Bryan, and
another. From order granting...
— 28. Pelletier v. Burson Case — s 402
73 A.3d 1180, Md.App., 2013
REAL PROPERTY - Mortgages and Deeds of
Trust. Mortgagor failed to sufficiently allege extrinsic
fraud, as would warrant reopening of foreclosure
judgment.
— 29. Pengelly v. Thomas Case — s 402
65 N.E.2d 897, Ohio App. 2 Dist., 1946
Statutory action by Emma Pengelly against
Cora I. Thomas, alias Cora I. Goddard, to have
administration of estate of plaintiff's husband
opened, to set aside the confirmation of...
— 30. Phillips v. Stear Case — s 402
783 S.E.2d 567, W.Va., 2016
LITIGATION - Judgment. To prevail on motion for
relief from judgment on ground of fraud, movant
must establish that opposing party's conduct
prevented movant from fully and fairly...
— 31. Pierre v. Jonassaint Case — s 402
212 So.3d 1131, Fla.App. 3 Dist., 2017
FAMILY LAW — Equitable Distribution. Court's
distribution of marital assets and liabilities without
including value of those items in the final dissolution
judgment violated...
— 32. Pittman v. Beck Park Apartments Ltd. Case — s 402
230 Cal.Rptr.3d 113, Cal.App. 2 Dist., 2018
LITIGATION — Injunction. Employee's voluntary
dismissal of action against employer did not deprive
trial court of jurisdiction to rule on pending vexatious
litigant motion.


Number
— 33. Sarvis v. Land Resources, Inc. Case — s 402
815 P.2d 840, Wash.App. Div. 1, 1991
President of corporate tenant appealed from order
of the Superior Court, Snohomish County, Kathryn
E. Trumbull, J., denying his motion to vacate default
judgment entered in...
— 34. Smith v. Miller Case — s 402
42 S.W. 182, Tenn.Ch.App., 1897
Appeal from chancery court, Rhea county; T.
M. McConnell, Chancellor. Bill by Margaret E.
Smith against W. B. Miller and others. Decree for
defendants, and complainant appeals. ...
— Case — s 402
35. State v. Batchelor
597 So.2d 1132, La.App. 1 Cir., 1992
State sued mother of narcotics defendant's
illegitimate child, seeking nullification of child
support judgment in favor of that child and against
defendant, on basis that judgment...
— 36. Stonger v. Sorrell Case — s 402
776 N.E.2d 353, Ind., 2002
FAMILY LAW - Judgment. Alleged fraudulent
materials that did not influence court's child custody
award did not constitute fraud on court.
— Case — s 402
37. Stout v. Derr
42 P.2d 136, Okla., 1935
Appeal from District Court, Logan County; Freeman
E. Miller, Judge. Suit by C. E. Stout against Frank
A. Derr and others to vacate a judgment. Judgment
for defendants refusing the...
— 38. Succession of Schulz Case — s 402
622 So.2d 693, La.App. 4 Cir., 1993
Judgment. Administratrix's failure to notify
intestate's heirs rendered judgment homologating
tableaux of distribution absolutely .
— 39. Sutey v. T26 Corporation Case — s 402
466 P.3d 1096, Wash.App. Div. 1, 2020
LITIGATION — Judgment. Vacating default
judgment in unpaid wages action was not warranted
on basis that it was void for improper service.
— 40. Terry v. Terry Case — s 402
638 N.W.2d 11, N.D., 2002
FAMILY LAW - Judgment. Ex-wife failed to
demonstrate adequate grounds to vacate the
divorce decree.


Number
— 41. Vacating or Opening Judgment by Secondary — s 402
Confession on Ground of Fraud, Illegality, or Source
Mistake
Vacating or Opening Judgment by Confession on
Ground of Fraud, Illegality, or Mistake
2001 WL 1042530, 2001
Often a judgment in a civil action is obtained
in accordance with an agreement made by the
purported debtor under which authority is granted to
enter the judgment without the...
— 42. Wells Fargo Bank, N.A. v. Tarzia Case — s 402
201 A.3d 511, Conn.App., 2019
REAL PROPERTY — Mortgages and Deeds of
Trust. Trial court did not abuse its discretion in
denying pro se mortgagor's motion to open and
vacate judgment of strict foreclosure.
— 43. Wimber v. Timpe Case — s 402
818 P.2d 954, Or.App., 1991
Proceeding was brought to set aside decree of
adoption. The Circuit Court, Multnomah County,
Stephen S. Walker, J., set aside decree of adoption.
Adoptive father appealed. ...
— 44. Witbart v. Witbart Case — s 402
666 P.2d 1217, Mont., 1983
Contractor assigned his interest in prospective
judgment from action to foreclose mechanic's lien
against property owners to his wife in separation
agreement, to lender for down...

§ 403. Extrinsic or intrinsic fraud as justifying opening of..., 49 C.J.S. Judgments §...
Judgments
§ 403. Extrinsic or intrinsic fraud as justifying opening of judgment

Generally, the fraud justifying opening a judgment must be extrinsic and collateral to the
matter tried, and not a matter actually or potentially at issue in the action, although the
distinction between intrinsic and extrinsic fraud has been abolished by some rules.
Authority to grant relief from judgments for fraud usually is limited to cases where the fraud was
practiced in the act of obtaining the judgment; the fraud must be extrinsic and collateral to the
matter tried, and not a matter that was actually or potentially in issue in the action,1 unless the
interposition of a defense of fraud was prevented by fraud, accident, or the act of the opposite party

without fault or blame on the part of the party seeking relief.2 The reason for granting relief from a
judgment in cases of extrinsic fraud is that such fraud, in effect, prevents a real trial of the issues.3
Extrinsic fraud, for this purpose, is some act or conduct of the prevailing party that prevents a
fair submission of the controversy, and includes lulling the party into a false sense of security or
preventing the party from making a defense.4 It is shown where facts are proved that, if known to
the court, would have caused the court not to enter the judgment.5 In determining whether extrinsic
fraud exists, the question is whether the fraud prevented the actual dispute from being tried by the
court6 or submitted to the fact finder.7 All claims of extrinsic fraud depend on their own facts.8
However, a mere failure to disclose to the adversary or to the court matters that would defeat one's
own claim or defense is not such extrinsic fraud as will justify or require vacating the judgment.9
Intrinsic fraud distinguished.
Fraud is intrinsic, for purposes of allowing a judgment to be set aside on the basis of fraud, when
it pertains to an issue raised or which could have been raised in the original action.10 In other
words, intrinsic fraud involves conduct during the course of trial.11 The theory for denying relief
is that intrinsic deceptions should be discovered during the litigation itself, and permitting relief
undermines the stability of judgments.12
Intrinsic fraud consists of acts that pertain to the merits of the case.13 Intrinsic fraud is fraud that
misleads a court in determining issues and induces the court to find for the party perpetrating the
fraud.14 It is the presentation of misleading information on an issue before the court that was tried
or could have been tried,15 or fraud actually presented and considered by the court in arriving at the
judgment.16 It includes falsified evidence, forged documents, or perjured testimony.17 Allegations
that a party failed to disclose documents amount to intrinsic fraud,18 and where the defrauded
party fails to take advantage of liberal discovery to investigate the party's claim fully, any fraud
is intrinsic.19
Effect of statutes or rules on distinction.
Under some statutes or rules of civil procedure, the distinction between intrinsic and extrinsic fraud
has been eliminated.20 Certain rules have the effect that extrinsic fraud may be attacked outside the
action, while intrinsic fraud may be challenged only by a motion filed within a certain period.21

Footnotes
1 Idaho—Campbell v. Kildew, 141 Idaho 640, 115 P.3d 731 (2005).
Ky.—Meece v. Commonwealth, 529 S.W.3d 281 (Ky. 2017).
Md.—Pelletier v. Burson, 213 Md. App. 284, 73 A.3d 1180 (2013).
Or.—Matter of A. R. L. U., 296 Or. App. 48, 437 P.3d 1233 (2019), review denied, 365 Or. 194, 451 P.3d
236 (2019).
Pa.—Brittain v. Hope Enterprises Foundation Incorporated, 2017 PA Super 148, 163 A.3d 1029 (2017),
appeal denied, 644 Pa. 695, 178 A.3d 731 (2018).
2 Ariz.—Schuster v. Schuster, 51 Ariz. 1, 73 P.2d 1345 (1937).
Okla.—Metzger v. Turner, 1945 OK 149, 195 Okla. 406, 158 P.2d 701 (1945).
Tex.—Traders & General Ins. Co. v. Rhodabarger, 109 S.W.2d 1119 (Tex. Civ. App. El Paso 1937), writ
dismissed.
As to failure to interpose defenses, generally, as a ground for opening or a vacating judgment, see § 398.
3 Or.—JRD Development Joint Venture v. Catlin, 116 Or. App. 182, 840 P.2d 737 (1992), opinion adhered to
as modified on reconsideration on other grounds, 118 Or. App. 502, 848 P.2d 136 (1993).
Wrongful death action
Knowingly maintaining a wrongful death action on behalf of someone for whom that right of action does not
exist prevents a fair submission of the controversy and constitutes fraud on the court that warrants setting
aside the judgment wrongly obtained.
Pa.—Brittain v. Hope Enterprises Foundation Incorporated, 2017 PA Super 148, 163 A.3d 1029 (2017),
appeal denied, 644 Pa. 695, 178 A.3d 731 (2018).
4 Ind.—Matter of Paternity of R.C., 587 N.E.2d 153 (Ind. Ct. App. 1992).
Iowa—In re Marriage of Heneman, 396 N.W.2d 797 (Iowa Ct. App. 1986).
Similar definitions
(1) "Extrinsic fraud" is fraud practiced in obtaining a judgment such that a party may have been prevented
from fully and fairly litigating the matter.
N.Y.—Wells Fargo Bank Minnesota, N.A. v. Coletta, 153 A.D.3d 756, 59 N.Y.S.3d 788 (2d Dep't 2017).
(2) "Extrinsic fraud" is defined as prevention of an unsuccessful party from presenting a case by fraud
or deception practiced by an adversary, keeping an opponent away from the court, falsely promising a
compromise, ignorance of the adversary about the existence of the suit or the acts of the plaintiff, or
fraudulent representation of a party without the party's consent and connivance in the party's defeat; in other
words, extrinsic fraud occurs where a defendant has somehow been prevented from participating in a cause.
Fla.—Voce v. Wachovia Mortg., FSB, 174 So. 3d 545 (Fla. 4th DCA 2015).
(3) "Extrinsic fraud" occurs when a party is deprived of the opportunity to present a claim or defense to the
court, where that party was kept in ignorance or in some other manner fraudulently prevented from fully
participating in the proceeding.
Conn.—Colby v. Colby, 190 Conn. App. 140, 209 A.3d 1273 (2019).
5 Mo.—Gehm v. Gehm, 707 S.W.2d 491 (Mo. Ct. App. W.D. 1986).
Different judgment distinguished
Fraud extrinsic to the judgment is shown when proof of facts is made, which if known to trial court, would
have caused the trial court not to enter judgment; facts that would have caused the court to enter a different
judgment do not constitute extrinsic fraud.
Mo.—In re Marriage of Harrison, 734 S.W.2d 934 (Mo. Ct. App. S.D. 1987).
6 Fla.—Parker v. Parker, 950 So. 2d 388 (Fla. 2007).
7 Md.—Hresko v. Hresko, 83 Md. App. 228, 574 A.2d 24 (1990).
8 Fla.—Gordon v. Gordon, 625 So. 2d 59 (Fla. 4th DCA 1993).
9 Ga.—Young v. Young, 188 Ga. 29, 2 S.E.2d 622 (1939).

Mo.—First Nat. Bank & Trust Co. of King City v. Bowman, 322 Mo. 654, 15 S.W.2d 842 (1929).

Okla.—Stout v. Derr, 1935 OK 253, 171 Okla. 132, 42 P.2d 136 (1935) (disapproved of on other grounds
Tex.—Price v. Smith, 109 S.W.2d 1144 (Tex. Civ. App. Eastland 1937), dismissed.
10 Ga.—McCarthy v. Ashment, 338 Ga. App. 858, 790 S.E.2d 651 (2016).
11 Okla.—Northwest Roofing Supply, Inc. v. Elegance in Wood, LLC, 2012 OK CIV APP 13, 271 P.3d 800
(Div. 2 2011).
12 S.C.—Raby Const., L.L.P. v. Orr, 358 S.C. 10, 594 S.E.2d 478 (2004).
13 Or.—Matter of A. R. L. U., 296 Or. App. 48, 437 P.3d 1233 (2019), review denied, 365 Or. 194, 451 P.3d
236 (2019).
16 Ind.—Matter of Paternity of R.C., 587 N.E.2d 153 (Ind. Ct. App. 1992).
17 U.S.—Jester v. Wells Fargo Bank N.A., 297 F. Supp. 3d 1233 (E.D. Okla. 2018).
Haw.—Low v. Minichino, 126 Haw. 99, 267 P.3d 683 (Ct. App. 2011).
236 (2019).
Tenn.—Black v. Black, 166 S.W.3d 699 (Tenn. 2005).
The effect of perjured testimony is discussed in § 405.
19 Cal.—In re Marriage of Melton, 28 Cal. App. 4th 931, 33 Cal. Rptr. 2d 761 (6th Dist. 1994).
20 Ind.—State Farm Fire & Cas. Co. v. Radcliff, 18 N.E.3d 1006 (Ind. Ct. App. 2014).
Ohio—Windward Enterprises, Inc. v. Valley City Development Group LLC, 2019-Ohio-3419, 142 N.E.3d
177 (Ohio Ct. App. 9th Dist. Medina County 2019).

Government Works.


1. In re de Manati May 24, 1972 Case
357 F.Supp. 1253, 1259 , D.Puerto Rico
Reorganization proceedings in which creditor moved to strike certain
paragraphs of petition. The District Court, Toledo, J., held, inter alia, that
United States District Court,...
2. Bolls v. Sharkey Sep. 15, 1969 Case
226 So.2d 372, 376 , Miss.
Proceeding on appeal by insurance agent from a judgment of the Circuit Court,
Warren County, Ben Guider, J., finding him liable for amount of judgment
entered against purported...
3. Sinnott v. Porter Feb. 27, 1973 Case
204 N.W.2d 449, 452 , Wis.
Action by vendor to require vendee to pay amount of principal and interest
actually due on land contract. The County Court, Walworth County, John D.
Voss, J., denied defendant's...
4. Arizona Practice s 38:1, § 38:1. Judgments—Generally 2020 Other —
Arizona Practice Secondary
Source
''Judgment,'' as used in the Arizona Rules of Civil Procedure, includes a
decree or an order from which an appeal lies. All judgments (except in habeas
corpus proceedings) shall be...
5. Arkansas Civil Practice and Procedure s 19:6, § 19:6. Service by mail 2021 Other —
or publication Secondary
Arkansas Civil Practice and Procedure Source
Pursuant to Ark. R. Civ. P. 4(d)(8), service inside the State of Arkansas may be
made by mail or commercial delivery company on any defendant except any
agency or officer of the...
6. Arkansas Civil Practice and Procedure s 31:1, § 31:1. Definition and 2021 Other —
form Secondary
Arkansas Civil Practice and Procedure Source
A ''judgment,'' according to Ark. R. Civ. P. 54(a), ''includes a decree and any
order from which an appeal lies.'' Although the rule may not seem to amount to
a full definition, it...
Newly discovered evidence as grounds for relief from judgment, Secondary
generally Source
The Civil Practice Law and Rules provide that relief from a judgment may be
granted upon the ground of newly discovered evidence which, if introduced at
the trial, would probably...
Denial of relief from judgment on grounds of newly discovered evidence Secondary
held an abuse of court's discretion Source
In an action to recover damages for breach of contract, it was held that a trial
court had abused its discretion in denying the defendants' motion for a new
trial because the...
Denial of relief from judgment on grounds of newly discovered evidence Secondary
held not an abuse of court's discretion Source
A court's denial of relief from a judgment sought on the ground of newly
discovered evidence has been held not an abuse of the court's discretion
where— a trial court declined to...


10. 22A Indiana Practice Series s 36.1, § 36.1. Judgments—Overview 2021 Other —
Indiana Practice Series Secondary
Source
A judgment is ''any decree and any order from which an appeal lies.'' The
Indiana General Assembly has defined judgments as ''all final orders, decrees,
and determinations in an...
11. 9 Iowa Practice Series s 21:15, § 21:15. Motion for retrial after 2021 Other —
published notice Secondary
Source
Except in actions for dissolution of marriage and annulment of marriage, if
judgment is entered against a defendant who did not appear and was served
only by publication or by...
12. Louisiana Civil Pretrial Procedure s 7:65, § 7:65. Service on 2021 Other —
partnerships—On employee—Illustrations Secondary
Source
Default judgment rendered against a farm tenant, a partnership, in a landlord's
action seeking past due rent was a nullity due to the landlord's failure to
properly serve process...
13. 4 Maine Practice Series s 41:1, § 41:1. Definition of judgment, in 2021 Other —
general Secondary
Maine Practice Series Source
Entry of judgment generally occurs after the close of the trial, so an extended
discussion of the topic is beyond the scope of this work. A judgment is the
law's last word in a...
14. 31 Mass. Prac. Series s 4.3, § 4.3. Jurisdiction over non-residents 2021 Other —
Mass. Prac. Series Secondary
Source
A court is without jurisdiction to entertain a personal action against a non-
resident not served with process within its jurisdiction. The personal service
required in order to...
15. Virginia Practice Trial Handbook s 40:1, § 40:1. Definition of 2021 Other —
judgment—In general Secondary
Virginia Practice Trial Handbook Source
A judgment is the law's last word in a judicial controversy. It is the result of the
application of legal principles to the state of facts presented to the court. It is
the court's...
16. 5 West's Texas Forms s 33.2.6, § 33.2.6. Motion for new trial following 2021 Other —
citation by publication ("statutory bill of review") Secondary
West's Texas Forms Source
The preceding form illustrates the format and content of a Motion for New Trial
Following Citation by Publication pursuant to Rule 329 of the Texas Rules of
Civil Procedure....
17. 5 West's Texas Forms s 33.2.7, § 33.2.7. Affidavit in support of 2021 Other —
motion for new trial following citation by publication Secondary
The preceding form illustrates the format of an Affidavit in Support of a Motion
for New Trial Following Citation by Publication, filed pursuant to Rule 329 of
the Texas Rules of...
18. 11 Wisconsin Practice Series s 37:01, § 37:01. Generally 2020 Other —
Wisconsin Practice Series Secondary
Source
A judgment is the determination of the action. It may be final or interlocutory
in nature. Wis. Stat. § 806.01(1)(a). There can generally be only one final
judgment entered in...
19. 3A Wisconsin Practice Series s 601.1, § 601.1. In general 2021 Other —
Source
Wis. Stat. § 806.01 defines what is a judgment, specifies what a judgment
must contain, and describes what a final judgment must grant. It also provides
for a partial judgment in...


20. 3A Wisconsin Practice Series s 806.01, Text of § 806.01. Judgment 2021 Other —
Source
The amendment of §§ 806.01(1)(B), 806.11(1) and 806.15(1), stats., relates to
certain information required to be entered in lien and judgment dockets. The
amendments delete the...
21. 3B Wisconsin Practice Series s 806.01, § 806.01. Judgment 2021 Other —
Source
S.Ct. Order, 67 Wis. 2d 715, eff. Jan. 1, 1976. L.1975, c. 218, §§ 173, 174, eff.
April 23, 1976. 1985 Act 145, § 8, eff. March 26, 1986. 1987 Act 256, § 11, eff.
April 21, 1988....
22. 6A Wisconsin Practice Series s 83:1, § 83:1. Practice essentials 2021 Other —
Source
A judgment is the determination of the action. A judgment is either final or
interlocutory. A judgment must specify the relief granted or other determination
of the action, and the...
23. 6A Wisconsin Practice Series s 83:2, § 83:2. Introduction 2021 Other —
Source
A judgment is the determination of the action. Determinations in special
proceedings are orders rather than judgments. The verdict or the findings of
fact and conclusions of law...


Number
— 1. Black v. Black Case — s 403
166 S.W.3d 699, Tenn., 2005
FAMILY LAW - Judgment. Complaint failed to
establish an independent action for setting aside
divorce decree based on coercion.
— 2. Brittain v. Hope Enterprises Foundation Case — s 403+
Incorporated
163 A.3d 1029, Pa.Super., 2017
TORTS — Judgment. Fraud alleged by group
home, if proven, constituted extrinsic fraud, as basis
to reopen wrongful death judgment in favor of estate
administrator.
— Case — s 403
3. Campbell v. Kildew
115 P.3d 731, Idaho, 2005
REAL PROPERTY - Arbitration. Non-party had
standing to bring action to set aside judgment
confirming arbitration award
— 4. Colby v. Colby Case — s 403
209 A.3d 1273, Conn.App., 2019
FAMILY LAW — Judgment. Ex-husband was not
entitled to relief from California judgment in which
he stipulated he owed ex-wife $241,416 in past due
child support payments.
— 5. First Nat. Bank & Trust Co. of King City v. Case — s 403
Bowman
15 S.W.2d 842, Mo., 1929
Appeal from Circuit Court, Gentry County; John
M. Dawson, Judge. Action by the First National
Bank & Trust Company of King City against Louis
N. Bowman and others. From the...
— 6. Gehm v. Gehm Case — s 403
707 S.W.2d 491, Mo.App. W.D., 1986
Former husband moved, inter alia, to modify child
custody provision of dissolution decree, and former
wife filed cross-motion for modification and motion
to set aside dissolution...
— Case — s 403
7. Gordon v. Gordon
625 So.2d 59, Fla.App. 4 Dist., 1993
Fraud In Dissolution. Husband could bring action for
relief from dissolution judgment based on extrinsic
fraud.
— 8. Hresko v. Hresko Case — s 403
574 A.2d 24, Md.App., 1990
Former husband's motion to vacate divorce decree
on ground that wife allegedly concealed assets
during negotiations leading to separation and
property settlement agreement...


Number
— 9. In re Marriage of Harrison Case — s 403
734 S.W.2d 934, Mo.App. S.D., 1987
Ex-wife filed “amended counterclaim” wherein
she sought to have certain provisions of decree
dissolving marriage vacated and set aside. The
Circuit Court, Christian County,...
— Case — s 403
10. In re Marriage of Heneman
396 N.W.2d 797, Iowa App., 1986
Husband appealed from judgment of the District
Court for Emmet County, James H. Andreasen, J.,
refusing to vacate default decree of dissolution of
marriage. The Court of Appeals,...
— Case — s 403
11. In re Marriage of Melton
33 Cal.Rptr.2d 761, Cal.App. 6 Dist., 1994
Divorce. Husband's misrepresentation of present
value of future pension benefits was not extrinsic
fraud for which otherwise valid divorce judgment
could be set aside.
— 12. Jester v. Wells Fargo Bank N.A. Case — s 403
297 F.Supp.3d 1233, E.D.Okla., 2018
REAL PROPERTY — Jurisdiction. Rooker-
Feldman precluded subject matter jurisdiction over
mortgagor's claims against mortgage assignee
arising out of foreclosure judgment.
— Case — s 403
13. JRD Development Joint Venture v. Catlin
840 P.2d 737, Or.App., 1992
JUDGMENT - Relief From. Witness' alleged perjury
was mere “intrinsic fraud,” not justifying relief from
judgment.
— 14. Low v. Minichino Case — s 403
267 P.3d 683, Hawai'i App., 2011
REAL PROPERTY - Alternative Dispute Resolution.
Purchaser made prima facie showing that arbitration
award was procured by fraud as to warrant hearing
on motion to vacate.
— 15. Matter of A. R. L. U. Case — s 403+
437 P.3d 1233, Or.App., 2019
FAMILY LAW — Judgment. Mother's allegations
in motion to set aside a judgment terminating her
parental rights were of intrinsic fraud rather than
extrinsic fraud.
— Case — s 403+
16. Matter of Paternity of R.C.
587 N.E.2d 153, Ind.App. 4 Dist., 1992
Putative father brought action to set aside filiation
and child support on grounds of newly discovered
evidence and fraud. The Allen Superior Court,
William L. Briggs, J.,...


Number
— 17. McCarthy v. Ashment Case — s 403
790 S.E.2d 651, Ga.App., 2016
FAMILY LAW — Judgment. Former husband was
precluded from seeking to set aside permanent
protective order on ground of lack of personal
jurisdiction.
— 18. Meece v. Commonwealth Case — s 403
529 S.W.3d 281, Ky., 2017
CRIMINAL JUSTICE — Evidence. Prosecutor's
characterization of previous plea agreement
between defendant and Commonwealth was not
fraud in capital murder prosecution.
— 19. Metzger v. Turner Case — s 403
158 P.2d 701, Okla., 1945
Appeal from District Court, Pottawatomie County;
Clyde G. Pittman, Judge. Suit to quiet title by Fred
O. Turner against H. W. Metzger, Elsie Nash and
others, wherein the named...
— 20. Northwest Roofing Supply, Inc. v. Elegance Case — s 403
in Wood, LLC
271 P.3d 800, Okla.Civ.App. Div. 2, 2011
REAL PROPERTY - Liens. Statutory notice
requirements for a subcontractor or materialman
seeking to assert a lien applied to construction
materials supplier.
— Case — s 403+
21. Parker v. Parker
950 So.2d 388, Fla., 2007
FAMILY LAW - Judgment. Wife's misrepresentation
concerning husband's paternity in dissolution of
marriage proceeding constituted intrinsic fraud.
— 22. Pelletier v. Burson Case — s 403
73 A.3d 1180, Md.App., 2013
REAL PROPERTY - Mortgages and Deeds of
Trust. Mortgagor failed to sufficiently allege extrinsic
fraud, as would warrant reopening of foreclosure
judgment.
— 23. Price v. Smith Case — s 403
109 S.W.2d 1144, Tex.Civ.App.-Eastland, 1937
Appeal from District Court, Mitchell County; A. S.
Mauzey, Judge. Suit by R. P. Price and others
against Jack Smith, administrator, and others. From
a judgment of dismissal,...
— 24. Raby Const., L.L.P. v. Orr Case — s 403+
594 S.E.2d 478, S.C., 2004
COMMERCIAL LAW - Judgment. Rule authorizing
relief from judgments on the basis of fraud applied
only to extrinsic fraud.


Number
— 25. Schuster v. Schuster Case — s 403
73 P.2d 1345, Ariz., 1937
Action by Louise A. Schuster against Thomas
Schuster and others. From a judgment dismissing
the action, plaintiff appeals. Affirmed.
— 26. State Farm Fire & Cas. Co. v. Radcliff Case — s 403
18 N.E.3d 1006, Ind.App., 2014
TORTS - Judgment. Property insurer was not
entitled to relief from defamation judgment in favor
of contractor working on hail claims.
— Case — s 403
27. Stout v. Derr
42 P.2d 136, Okla., 1935
— 28. Traders & General Ins. Co. v. Rhodabarger Case — s 403
109 S.W.2d 1119, Tex.Civ.App.-El Paso, 1937
Error from District Court, Ward County; J. A. Drane,
Judge. Suit by the Traders & General Insurance
Company against Harry Rhodabarger, wherein
Mildred Rhodabarger intervened. To...
— 29. Voce v. Wachovia Mortg., FSB Case — s 403
174 So.3d 545, Fla.App. 4 Dist., 2015
REAL PROPERTY - Judgment. Relief from final
judgment of foreclosure based on extrinsic fraud
was properly denied.
— 30. Wells Fargo Bank Minnesota, N.A. v. Coletta Case — s 403
59 N.Y.S.3d 788, N.Y.A.D. 2 Dept., 2017
Mortgagors did not show reasonable excuse for
their default, as required for relief on their claim of
intrinsic fraud.
— 31. Windward Enterprises, Inc. v. Valley City Case — s 403
Development Group LLC
142 N.E.3d 177, Ohio App. 9 Dist., 2019
REAL PROPERTY — Attorney Fees. Lessee was
not overall prevailing party, as required to award
attorney fees in action for conversion after lessor
changed locks on leased property.
— Case — s 403
32. Young v. Young
2 S.E.2d 622, Ga., 1939
Error from Superior Court, DeKalb County; James
C. Davis, Judge. Suit by Charles W. Young against
Mrs. Mary Elizabeth Young to set aside a divorce
decree and a judgment based on an...

§ 404. Fraud on the court as ground for opening or..., 49 C.J.S. Judgments §...
Judgments
§ 404. Fraud on the court as ground for opening or vacating judgment

Fraud on the court is a ground for relief from a judgment, but it must be egregious, and
generally more than fraud between the parties.
Fraud practiced on the court is ground for obtaining relief from a judgment, as where the court is
deceived or misled concerning the material circumstances, or its process is abused, resulting in the
rendition of a judgment that would not have been given if the conduct of the case had been fair.1
Fraud on the court occurs when it can be demonstrated, clearly and convincingly, that a party has
set in motion some unconscionable scheme calculated to interfere with the judicial system's ability
to adjudicate the matter impartially, by improperly influencing the court or unfairly hampering the

presentation of the opposing party's claim or defense,2 and, unlike common-law fraud, does not
require a showing of reliance.3 Like all other types of fraud, proving fraud upon the court requires
showing that the perpetrator acted with the intent to defraud, for there is no such thing as accidental
fraud.4 The conduct must be so egregious that it involves corruption of judicial process.5 The
concept is reserved for only the most egregious conduct on the part of attorneys, court officials,
or judges that causes the judicial process to be subverted,6 so that the judicial machinery cannot
perform in the usual manner.7 It will be found only in the presence of such tampering with the
administration of justice as to suggest a wrong against the institution,8 preventing the movant from
fully and fairly presenting one's case,9 and ordinarily does not relate to fraudulent conduct between
the parties.10 However, the conduct need not rise to the level of a crime.11
Fraud on the court is a variety of extrinsic fraud,12 and, indeed, is a concept even narrower than
extrinsic fraud.13 Accordingly, nondisclosure to the adverse party or the court of facts pertinent to
the matter before it, without more, does not constitute a fraud on the court.14
A finding of fraud on the court depends on the particular facts of each case.15 The movant must
show that the court's decision was actually influenced by the fraud16 and the egregious character
of that conduct.17 Examples of fraud on the court include bribery of judges or jury, employment
of counsel to influence the court, and counsel's involvement in the perpetration of such fraud.18
Specific acts include the intentional failure to name known interested parties or to disclose material
facts, which deprives an interested party of a day in court,19 tricks practiced on a defendant to
keep defendant away from the trial, or to prevent the defendant from claiming rights or asserting
defenses,20 a defendant procuring a judgment dismissing the complaint for improper service, even
though the plaintiffs had arranged to have the defendant served again prior to the commencement
of a hearing on the defendant's challenge to service,21 intentionally concealing evidence,22 and
misrepresenting to the court the plaintiff's need to exhaust arbitration.23 While there is authority
that a client's allegations that a lawyer withheld information from the client and charged excessive
fees could not be said as a matter of law not to constitute fraud on the court,24 representations made
to the client, and not directly to the court, do not constitute a fraud on the court, where no ruling
was based on any such representation, and the representation did not subvert the judicial process.25
Courts weigh the interest of justice against the need for finality of judgments in examining a claim
of fraud on the court.26

Footnotes
1 Ala.—Worthey v. Worthey, 491 So. 2d 953 (Ala. Civ. App. 1986).
Ark.—Holland v. Wait, 191 Ark. 405, 86 S.W.2d 415 (1935).
Cal.—Kasparian v. Kasparian, 132 Cal. App. 773, 23 P.2d 802 (4th Dist. 1933).
Colo.—Southeastern Colorado Water Conservancy Dist. v. Cache Creek Min. Trust, 854 P.2d 167 (Colo.
1993).
Nev.—Murphy v. Murphy, 103 Nev. 185, 734 P.2d 738 (1987).
N.Y.—In re Holden, 271 N.Y. 212, 2 N.E.2d 631 (1936).
Okla.—Stout v. Derr, 1935 OK 253, 171 Okla. 132, 42 P.2d 136 (1935) (disapproved of on other grounds
2 Idaho—Rae v. Bunce, 145 Idaho 798, 186 P.3d 654 (2008).
Mass.—In re Will of Crabtree, 449 Mass. 128, 865 N.E.2d 1119 (2007).
N.J.—Triffin v. Automatic Data Processing, Inc., 394 N.J. Super. 237, 926 A.2d 362 (App. Div. 2007).
3 N.J.—Triffin v. Automatic Data Processing, Inc., 394 N.J. Super. 237, 926 A.2d 362 (App. Div. 2007).
4 S.C.—Sanders v. Smith, 431 S.C. 605, 848 S.E.2d 604 (Ct. App. 2020).
5 Ariz.—Clark v. Kreamer, 243 Ariz. 272, 405 P.3d 1123 (Ct. App. Div. 1 2017).
Del.—Sammons v. Doctors for Emergency Services, P.A., 913 A.2d 519 (Del. 2006).
Ohio—Roubanes Luke v. Roubanes, 2018-Ohio-1065, 109 N.E.3d 671 (Ohio Ct. App. 10th Dist. Franklin
County 2018).
Direct assault on integrity of judicial process
Haw.—Schefke v. Reliable Collection Agency, Ltd., 96 Haw. 408, 32 P.3d 52 (2001), as amended on other
grounds, (Oct. 11, 2001).
6 W. Va.—Withrow v. Williams, 216 W. Va. 385, 607 S.E.2d 491 (2004).
7 Mass.—Wojcicki v. Caragher, 447 Mass. 200, 849 N.E.2d 1258 (2006).

Mont.—In re Marriage of Weber, 2004 MT 211, 322 Mont. 341, 96 P.3d 716 (2004).
8 Idaho—Rae v. Bunce, 145 Idaho 798, 186 P.3d 654 (2008).
10 Colo.—Carbajal v. Wells Fargo Bank, N.A., 2020 COA 49, 467 P.3d 1262 (Colo. App. 2020).
Ky.—Meece v. Commonwealth, 529 S.W.3d 281 (Ky. 2017).
Mont.—Matter of Estate of Cooney, 2019 MT 293, 398 Mont. 166, 454 P.3d 1190 (2019).
11 R.I.—Lett v. Providence Journal Co., 798 A.2d 355 (R.I. 2002).
12 Ariz.—Alvarado v. Thomson, 240 Ariz. 12, 375 P.3d 77 (Ct. App. Div. 1 2016), as amended, (May 31, 2016).
As to the distinction between extrinsic and extrinsic fraud, see § 403.
15 Minn.—Mahoney v. Mahoney, 474 N.W.2d 232 (Minn. Ct. App. 1991).
16 Ind.—In re Adoption of L.G.K., 113 N.E.3d 767 (Ind. Ct. App. 2018), transfer denied, 124 N.E.3d 44 (Ind.
2019).
17 Mass.—Sahin v. Sahin, 435 Mass. 396, 758 N.E.2d 132 (2001).
18 Mass.—J.S.H. v. J.S., 91 Mass. App. Ct. 107, 71 N.E.3d 910 (2017).
19 Mass.—Altshuler v. Minkus-Whalen, 31 Mass. App. Ct. 937, 579 N.E.2d 1369 (1991).
20 Okla.—Covington v. Anthony, 1942 OK 261, 191 Okla. 266, 128 P.2d 1012 (1942).
Prevents party from having opportunity to appeal or assert defense
La.—Clulee v. Louisiana Materials Co., Inc., 590 So. 2d 780 (La. Ct. App. 5th Cir. 1991), writ denied, 594
So. 2d 1323 (La. 1992).
21 N.Y.—Sirota v. Kloogman, 140 A.D.2d 426, 528 N.Y.S.2d 127 (2d Dep't 1988).

22 Ill.—Bank of America, N.A. v. Adeyiga, 2014 IL App (1st) 131252, 390 Ill. Dec. 431, 29 N.E.3d 60 (App.
Ct. 1st Dist. 2014).
Okla.—In re Initiative Petition No. 379, State Question No. 726, 2006 OK 89, 155 P.3d 32 (Okla. 2006).
23 Alaska—Higgins v. Municipality of Anchorage, 810 P.2d 149 (Alaska 1991).
24 Ala.—Ex parte Free, 910 So. 2d 753 (Ala. 2005).
25 W. Va.—Withrow v. Williams, 216 W. Va. 385, 607 S.E.2d 491 (2004).
26 Ala.—Christian v. Murray, 915 So. 2d 23 (Ala. 2005), as modified on other grounds on denial of reh'g,
(June 10, 2005).

Government Works.


1. Lampson Lumber Co. v. Hoer Dec. 02, 1952 Case
93 A.2d 143, 145 , Conn.
Action of debt upon a judgment, wherein defendant's answer was a general
denial and a special defense alleging that he was not served with process and
did not receive notice of...
2. Higgins v. Montana Hotel Corp. Mar. 19, 1979 Case
592 P.2d 930, 934 , Mont.
Holder of a certificate of tax assignment brought a quiet title action to procure
a tax deed. The Third District Court, Deer Lodge County, Robert J. Boyd, J.,
quieted title in the...
Sep. 08, 1986 Case
3. Yarbrough v. Collins
348 S.E.2d 194, 197 , S.C.App.
Individual brought action to quiet title to tract of land. The Common Pleas
Court, Beaufort County, Luke N. Brown, Jr., J., adopted recommendations of
referee and issued decree...
4. Carter v. G & L Tool Co. of Utah, Inc. May 22, 1968 Case
428 S.W.2d 677, 682 , Tex.Civ.App.-San Antonio
Suit brought on Colorado judgment by assignee of judgment creditor . The
37th District Court of Bexar County, Walter Loughridge, J., entered judgment in
favor of plaintiff, and...
Requirements that new evidence change result and be material and Secondary
noncumulative to obtain relief from judgment Source
To merit relief from a judgment on the ground of newly discovered evidence,
the movant must show that the evidence would probably have changed the
result or produced a different...
6. 2 Connecticut Practice Series FORM 107.8–F, Form 107.8-F. Motion to 2021 Other —
open judgment upon default Secondary
Connecticut Practice Series Source
For an excellent discussion of the power of the court to open judgments, and
a summary of the case law regarding when that power should or should not be
exercised, see Steve...
7. 5 Indiana Practice Series s 5:6.3, § 5:6.3. Motion to set aside default 2021 Other —
judgment Secondary
Indiana Practice Series Source
8. 9 Iowa Practice Series s 20:6, § 20:6. Application for entry of default 2021 Other —
judgment after appearance—Motion to set aside default Secondary
Source
On motion and for good cause shown, and upon such terms as the court
prescribes, but not ex parte, the court may set aside a default or the judgment
thereon, for mistake,...
judgment after appearance—Resistance to motion to set aside default Secondary
Source
The resistance should respond to the grounds asserted in the motion to set
aside the default.
10. 16A Minnesota Practice Series s 55:21, § 55:21. Motion to set aside 2021 Other —
default judgment Secondary
Minnesota Practice Series Source
default judgment—First alternative form Secondary


default judgment—Second alternative form Secondary
default judgment—Third alternative form Secondary
14. 16A Minnesota Practice Series s 55:29, § 55:29. Motion for default 2021 Other —
judgment—By defendant on counterclaim Secondary
Rule 55.01(b) was amended as part of the extensive amendments to timing
provisions in the rules. The notice provision contained in Rule 55.01(b),
regarding service of written...
judgment—By defendant on cross-claim Secondary
judgment—By third party plaintiff Secondary
judgment after administrator's refusal to enter default judgment Secondary
default judgment pursuant to Rule 60.02(d)—Service by publication Secondary
19. 4 N.J. Prac. Series s 58:7, § 58:7. Order vacating default 2021 Other —
N.J. Prac. Series Secondary
Source
Rule 6:6-2 which applies to the Special Civil Part was amended effective
January 1, 1988, to provide that a party against whom a default has been
entered for failure to plead or...
20. 30A N.J. Prac. Series s 31.34, § 31.34. Operation and effect of 2020 Other —
judgment—In general Secondary
N.J. Prac. Series Source
It is well settled that where a final judgment of a court having competent
jurisdiction determines a right, question or fact distinctly put in issue, the
judgment is binding upon...
21. 1B Vernon's Oklahoma Forms 2d s 8.71, § 8.71. Motion to vacate 2020 Other —
judgment—Section 1031.1 Secondary
Source
The second paragraph in the above form should provide the trial court with a
reason for vacating the judgment. Although a trial court has wide and broad
discretion in ruling on a...
22. 1B Vernon's Oklahoma Forms 2d s 8.81, § 8.81. Petition to vacate or 2020 Other —
modify judgment—General form Secondary
Source
A petition to vacate a judgment must be served with a summons on the
opposing party in accordance with 12 Okla. Stat. Ann. § 2004. A brief or list of
authorities is required for a...
23. 1B Vernon's Oklahoma Forms 2d s 8.84, § 8.84. Petition to vacate 2020 Other —
judgment—After service by publication Secondary
Source
opposing party in accordance with 12 Okla. Stat. Ann. § 2004. A petition to
vacate a judgment under 12 Okla....


judgment—After service by certified mail Secondary
Source
opposing party in accordance with 12 Okla. Stat. Ann. § 2004. A petition to
vacate a judgment under 12 Okla....
judgment—Section 1032 Secondary
Source
There is no statutory requirement for an affidavit to accompany the motion, but
in many cases it will helpful in support of the motion. A brief or list of authorities
is required...
26. 1 West's Texas Forms s 11:61, § 11:61. Default judgment 2021 Other —
West's Texas Forms Secondary
Source
See Tex. R. Civ. P. 107, 238, 239, 239a, 240, 241, 243, 244. Rule 107
provides that no default judgment may be granted until the citation, or process
under Rules 108 or 108a or as...
27. 10 West's Texas Forms s 26:7, § 26:7. Motion for new trial following 2021 Other —
The courts are reasonably liberal in granting motions for new trials after default
judgments. The defendant must allege that his failure to attend or answer was
not intentional, or...
28. 4A West's Texas Forms s 24.1.7, § 24.1.7. Motion to set aside default 2021 Other —
judgment and for new trial Secondary
The preceding form illustrates the format and content of a Motion to Set Aside
Default Judgment and for New Trial satisfying Rule 320 of the Texas Rules of
Civil Procedure. Counsel...
29. Younger on California Motions s 26:58, § 26:58. Memorandum of 2020 Other —
points and authorities Secondary
Source
Attempts at informal resolution. As discussed above, it is often worthwhile to
attempt to resolve the situation before bringing the motion. Such negotiations
can even end up...
30. Younger on California Motions s 26:61, § 26:61. Proposed responsive 2020 Other —
pleading Secondary
Source
Code of Civil Procedure § 473(b), expressly requires that the answer in a
motion to set aside a default or ''other pleading proposed to be filed'' is to
accompany the motion,...
31. 3 Ariz. Legal Forms s 9:34, § 9:34. Motion to set aside default 2020 Other —
judgment Secondary
Source
See Rules 55(c), 59(g) and 60(c), Arizona Rules of Civil Procedure. The
standard for setting aside a default judgment is the same as the standard for
setting aside entry of default...


Number
— 1. Altshuler v. Minkus-Whalen Case — s 404
579 N.E.2d 1369, Mass.App.Ct., 1991
Proceeding was brought to vacate first and final
account. The Probate Court, Suffolk County,
removed administratrix and revoked allowance of
her final account. Administratrix...
— Case — s 404
2. Alvarado v. Thomson
375 P.3d 77, Ariz.App. Div. 1, 2016
FAMILY LAW — Paternity. Creation and use of
acknowledgement of paternity listing incorrect
biological father to avoid the adoption process was
a fraud upon the court.
— Case — s 404
3. Bank of America, N.A. v. Adeyiga
29 N.E.3d 60, Ill.App. 1 Dist., 2014
Mortgagors did not admit, by failing to deny, grace
period notice that was not specifically alleged.
— 4. Carbajal v. Wells Fargo Bank, N.A. Case — s 404+
467 P.3d 1262, Colo.App., 2020
LITIGATION — Judgment. Alleged discovery
violations in prior action did not support independent
equitable action to set aside prior judgment.
— 5. Christian v. Murray Case — s 404
915 So.2d 23, Ala., 2005
ESTATE PLANNING AND PROBATE - Wills.
Six-month period for contesting probated will had
passed when later will and codicil were discovered.
— 6. Clark v. Kreamer Case — s 404
405 P.3d 1123, Ariz.App. Div. 1, 2017
FAMILY LAW — Paternity. Setting aside of
acknowledgement of paternity was warranted based
on mother's fraudulent representation regarding
paternity of child.
— 7. Clulee v. Louisiana Materials Co., Inc. Case — s 404
590 So.2d 780, La.App. 5 Cir., 1991
Judgment debtors filed action to nullify prior
judgment against them in the amount of $39,434.41,
plus interest, costs and attorney fees. The
Twenty-Ninth Judicial District...
— 8. Covington v. Anthony Case — s 404
128 P.2d 1012, Okla., 1942
Appeal from Superior Court, Creek County, Bristow
Division; Herbert L. Arthurs, Judge. Action by
Pauline Covington, a minor, by her mother and next
friend, Dovie Mae Covington,...


Number
— 9. Ex parte Free Case — s 404
910 So.2d 753, Ala., 2005
LEGAL SERVICES - Malpractice. Former client
stated a claim against lawyer and law firm that
allegedly charged excessive fees.
— Case — s 404
10. Higgins v. Municipality of Anchorage
810 P.2d 149, Alaska, 1991
Municipal employee sued municipality alleging
that he was improperly reclassified. The Superior
Court, Third Judicial District, Anchorage, Rene J.
Gonzalez, J., denied...
— 11. Holland v. Wait Case — s 404
86 S.W.2d 415, Ark., 1935
Appeal from Pope Chancery Court; W. E. Atkinson,
Chancellor. Proceeding by Tollie Holland and others
against C. C. Wait and others, wherein named
defendant filed a cross–complaint....
— Case — s 404
12. In re Adoption of L.G.K.
113 N.E.3d 767, Ind.App., 2018
FAMILY LAW — Adoption. Mother's fraudulent
claim that she did not know child's father's identity
warranted relief for putative father from adoption
judgment.
— Case — s 404
13. In re Holden
2 N.E.2d 631, N.Y., 1936
Proceedings on the petitions of Edgar Hamilton
Holden and others for an order vacating, canceling,
and setting aside the orders of the Supreme Court,
Appellate Division, Second...
— Case — s 404
14. In re Initiative Petition No. 379, State
Question No. 726
155 P.3d 32, Okla., 2006
GOVERNMENT - Elections. Use of out-of-state
circulators invalidated initiative petition.
— 15. In re Marriage of Weber Case — s 404
96 P.3d 716, Mont., 2004
FAMILY LAW - Judgment. Former wife's testimony
did not constitute fraud on the court warranting relief
from final divorce decree.
— 16. In re Will of Crabtree Case — s 404
865 N.E.2d 1119, Mass., 2007
ESTATE PLANNING AND PROBATE - Trusts.
Trustees' undisclosed use of trust as operating fund
for seven trusts warranted their removal.


Number
— 17. J.S.H. v. J.S. Case — s 404
71 N.E.3d 910, Mass.App.Ct., 2017
FAMILY LAW — Protection Orders. Husband of
wife who attended domestic violence support group
was not entitled to expungement of harassment
prevention order against director of...
— 18. Kasparian v. Kasparian Case — s 404
23 P.2d 802, Cal.App. 4 Dist., 1933
Appeal from Superior Court, Tulare County; Frank
Lamberson, Judge. Action by Satenig Kasparian
against Garabed M. Kasparian, also known as G.
M. Kasparian, and another, where,...
— Case — s 404
19. Lett v. Providence Journal Co.
798 A.2d 355, R.I., 2002
LITIGATION - Dismissal. Fraud on the court
regarding plaintiff's ability to testify warranted
dismissal of action.
— 20. Mahoney v. Mahoney Case — s 404
474 N.W.2d 232, Minn.App., 1991
Wife commenced action to set aside decree of
dissolution, alleging that husband committed fraud
upon the court. The District Court, Cass County,
Peter W. Cannon, J., dismissed,...
— 21. Matter of Estate of Cooney Case — s 404
454 P.3d 1190, Mont., 2019
ESTATE PLANNING AND PROBATE — Wills.
Probate court did not have subject matter
jurisdiction to enforce separation agreement
incorporated into decedent's dissolution decree.
— 22. Meece v. Commonwealth Case — s 404
529 S.W.3d 281, Ky., 2017
CRIMINAL JUSTICE — Evidence. Prosecutor's
characterization of previous plea agreement
between defendant and Commonwealth was not
fraud in capital murder prosecution.
— 23. Murphy v. Murphy Case — s 404
734 P.2d 738, Nev., 1987
Former wife moved to set aside property distribution
after divorce. The Eighth Judicial District Court,
Clark County, Donald M. Mosley, J., dismissed
motion. Wife appealed. ...
— Case — s 404
Markley
856 N.E.2d 65, Ind., 2006


Number
— 25. Rae v. Bunce Case — s 404+
186 P.3d 654, Idaho, 2008
FAMILY LAW - Child Custody. Ex-wife did not
establish fraud upon the court so as to warrant
setting aside trial court's judgment which modified
child custody.
— 26. Roubanes Luke v. Roubanes Case — s 404
109 N.E.3d 671, Ohio App. 10 Dist., 2018
FAMILY LAW — Judgment. Husband's false
testimony in divorce constituted fraud on wife, rather
than court, and thus relief from judgment came
under rule's mistake provision.
— Case — s 404
27. Sahin v. Sahin
758 N.E.2d 132, Mass., 2001
FAMILY LAW - Judgment. Former wife was denied
equitable relief from judgment of divorce despite
undervalued marital asset.
— Case — s 404
28. Sammons v. Doctors for Emergency
Services, P.A.
913 A.2d 519, Del.Supr., 2006
HEALTH - Malpractice. Trial court did not abuse its
discretion by precluding expert witness from offering
opinion on causation and failure to diagnose sepsis.
— 29. Sanders v. Smith Case — s 404
848 S.E.2d 604, S.C.App., 2020
FAMILY LAW — Judgment. Wife's motion to set
aside default divorce decree based on husbands
fraud was filed within reasonable time.
— Case — s 404
30. Schefke v. Reliable Collection Agency,
Ltd.
32 P.3d 52, Hawai'i, 2001
LITIGATION - Costs. Trial court has discretion to
enhance lodestar amount of attorney fees.
— 31. Sirota v. Kloogman Case — s 404
528 N.Y.S.2d 127, N.Y.A.D. 2 Dept., 1988
In action to recover damages for medical
malpractice, defendant appealed from order of
the Supreme Court, Nassau County, Oppido, J.,
vacating judgment dismissing complaint and...
— 32. Southeastern Colorado Water Conservancy Case — s 404
Dist. v. Cache Creek Min. Trust
854 P.2d 167, Colo., 1993
Relief from Judgment. Motion for relief from
judgment on grounds of fraud was inexcusably
untimely.


Number
— Case — s 404
33. Stout v. Derr
42 P.2d 136, Okla., 1935
— 34. Triffin v. Automatic Data Processing, Inc. Case — s 404+
926 A.2d 362, N.J.Super.A.D., 2007
TORTS - Fraud. Drawer of checks did not
reasonably rely on assignee's misrepresentations
on his status as holder in due course.
— 35. Withrow v. Williams Case — s 404+
607 S.E.2d 491, W.Va., 2004
LITIGATION - Judgment. Attorney's
misrepresentation about mediation for dismissed
case was not fraud upon court.
— Case — s 404
36. Wojcicki v. Caragher
849 N.E.2d 1258, Mass., 2006
HEALTH - New Trial. Data showing that 59
participants in study reported history of malignancy
did not constitute newly discovered evidence.
— 37. Worthey v. Worthey Case — s 404
491 So.2d 953, Ala.Civ.App., 1986
Wife brought action requesting that divorce
decree be set aside on ground that husband had
perpetrated fraud upon court. The Circuit Court,
Morgan County, R.L. Hundley, J.,...

§ 405. Perjury as ground for vacating judgment, 49 C.J.S. Judgments § 405
Judgments
§ 405. Perjury as ground for vacating judgment

Perjury is not a ground for vacating a judgment where it is characterized as intrinsic fraud,
but may be a ground under certain statutes or rules of civil procedure.
Perjury at the trial is not a ground for vacating a judgment1 as being one obtained by fraud,2
within the rule that a judgment may only be opened for extrinsic fraud,3 since perjury is intrinsic
fraud,4 which could have been refuted at trial.5 Perjury does not constitute fraud on the court in
the absence of evidence that the judicial process itself was corrupted.6 However, a judgment may

be vacated where the perjury is connected with extrinsic or collateral fraud and the complaining
party is without fault.7
Under a rule of civil procedure, including one providing that relief may be based on intrinsic, as
well as extrinsic fraud,8 relief from a judgment may be based on an appropriate finding of perjury.9
The party seeking relief under such a rule must prove the most egregious conduct involving
corruption of the judicial process itself, by establishing to the satisfaction of the trial judge that
there was perjured testimony that influenced the court's judgment.10
Perjury is also a ground for vacating a judgment where it is specially made a ground for relief by
statute.11 Under such a statute, to set aside a judgment obtained as a result of corrupt and willful
perjury, it must be shown that the individual charged with perjury has been convicted of it.12
In any event, some courts hold that a judgment may be vacated for perjury under certain
conditions,13 as where a party obtains a judgment by that party's own willful perjury, or by the
use of false testimony, which the party knows at the time to be false.14 Perjury is not ground for
vacating the judgment where the judgment does not rest on the perjured testimony, such as where
the perjury relates to an immaterial matter,15 or it does not appear that the perjury was in any way
instrumental in the court assuming jurisdiction of the case.16 Furthermore, a party is not entitled
to relief from a judgment based on claims of perjury, where the movant had sufficient evidence to
be able to explore inconsistencies in the testimony at issue, and failed to call witnesses and other
employees to impeach that testimony,17 or could have raised the issue in cross-examination.18
Footnotes
1 Ark.—Tanbal v. Hall, 317 Ark. 506, 878 S.W.2d 724 (1994).
N.C.—Wilson v. SunTrust Bank, 257 N.C. App. 237, 809 S.E.2d 286 (2017), appeal dismissed, review
denied, 371 N.C. 446, 817 S.E.2d 576 (2018) and cert. denied, 139 S. Ct. 2674, 204 L. Ed. 2d 1069 (2019).
2 Ill.—Conway v. Gill, 257 Ill. App. 606, 1930 WL 3132 (1st Dist. 1930), cert. denied.
Iowa—Girdey v. Girdey, 213 Iowa 1, 238 N.W. 432 (1931).
Okla.—Small v. White, 1935 OK 542, 173 Okla. 83, 46 P.2d 517 (1935).
Pa.—Sallada v. Mock, 277 Pa. 285, 121 A. 54 (1923).
3 § 403.
4 U.S.—Jester v. Wells Fargo Bank N.A., 297 F. Supp. 3d 1233 (E.D. Okla. 2018).
236 (2019).
5 Alaska—Alaskan Adventure Tours, Inc. v. City and Borough of Yakutat, 307 P.3d 955 (Alaska 2013).
Or.—JRD Development Joint Venture v. Catlin, 116 Or. App. 182, 840 P.2d 737 (1992), opinion adhered to
as modified on reconsideration on other grounds, 118 Or. App. 502, 848 P.2d 136 (1993).
Tex.—Montgomery v. Kennedy, 669 S.W.2d 309 (Tex. 1984).

6 Alaska—Alaska Fur Gallery, Inc. v. First Nat. Bank Alaska, 345 P.3d 76 (Alaska 2015).
Mass.—Wojcicki v. Caragher, 447 Mass. 200, 849 N.E.2d 1258 (2006).
As to fraud on the court, see § 404.
7 Wash.—E. R. Thomas & Co. v. Penland, 148 Wash. 279, 268 P. 867 (1928).
8 § 403.
9 Haw.—Low v. Minichino, 126 Haw. 99, 267 P.3d 683 (Ct. App. 2011).
N.D.—Dvorak v. Dvorak, 2001 ND 178, 635 N.W.2d 135 (N.D. 2001).
Tenn.—Duncan v. Duncan, 789 S.W.2d 557 (Tenn. Ct. App. 1990).
Wyo.—Little v. Kobos By and Through Kobos, 877 P.2d 752 (Wyo. 1994).
10 Mass.—Pina v. McGill Development Corp., 388 Mass. 159, 445 N.E.2d 1059 (1983).
11 Ark.—Fawcett v. Rhyne, 187 Ark. 940, 63 S.W.2d 349 (1933).
12 Ga.—Sun v. Bush, 179 Ga. App. 140, 345 S.E.2d 873 (1986).
13 Judgment obtained against good conscience

Neb.—Lincoln County v. Provident Loan & Inv. Co. of Lincoln, 147 Neb. 169, 22 N.W.2d 609 (1946).
Based partly on false affidavits
La.—Succession of Hearn, 412 So. 2d 692 (La. Ct. App. 2d Cir. 1982), writ denied, 415 So. 2d 215 (La.
1982).
14 Ky.—Webb v. Niceley, 286 Ky. 632, 151 S.W.2d 768 (1941).
La.—Christie v. Patorno, 8 La. App. 603, 1928 WL 3677 (Orleans 1928).
Tenn.—Duncan v. Duncan, 789 S.W.2d 557 (Tenn. Ct. App. 1990).
15 Pa.—Sallada v. Mock, 277 Pa. 285, 121 A. 54 (1923).
Tex.—Yount-Lee Oil Co. v. Federal Crude Oil Co., 92 S.W.2d 493 (Tex. Civ. App. Beaumont 1936).
16 Ariz.—In re Hannerkam's Estate, 51 Ariz. 447, 77 P.2d 814 (1938).
17 Miss.—Moore v. Jacobs, 752 So. 2d 1013 (Miss. 1999).
18 Mo.—Blackstock v. Kohn, 994 S.W.2d 947 (Mo. 1999).

Government Works.


1. Engle v. Caudill Mar. 16, 1956 Case
288 S.W.2d 345, 346 , Ky.
One, who had been convicted of a felony under child desertion statute, which
was subsequently declared to be unconstitutional, brought habeas corpus
proceeding to secure his...
2. State v. $33,000.00 U.S. Currency May 15, 2008 Case
748 N.W.2d 420, 427 , N.D.
CRIMINAL JUSTICE - Forfeitures. Discovery request in related criminal case
did not constitute an appearance for purposes of default judgment in forfeiture
proceeding.
3. Fitzgerald v. State Dec. 22, 1947 Case
188 P.2d 412, 414 , Okla.Crim.App.
Appeal from District Court, Carter County; John C. Caldwell, Judge. Robert R.
Fitzgerald was convicted of bribery, and he appeals. Appeal dismissed.
4. State ex rel. Stewart v. Blair Nov. 10, 1947 Case
208 S.W.2d 268, 275 , Mo.
Consolidated certiorari proceedings by State of Missouri, at the relation of Ben
B. Stewart, Acting Warden of Missouri State Penitentiary, against Sam C. Blair,
Judge of the...
Newly discovered evidence as grounds for relief from judgment, Secondary
generally Source
The Civil Practice Law and Rules provide that relief from a judgment may be
granted upon the ground of newly discovered evidence which, if introduced at
the trial, would probably...
Due diligence requirement for relief from judgment based on newly Secondary
discovered evidence Source
Newly discovered evidence, within meaning of statute providing that an order
may be vacated on ground of newly discovered evidence, is evidence which
was in existence but...
7. 2 Connecticut Practice Series FORM 107.8–F, Form 107.8-F. Motion to 2021 Other —
open judgment upon default Secondary
Connecticut Practice Series Source
For an excellent discussion of the power of the court to open judgments, and
a summary of the case law regarding when that power should or should not be
exercised, see Steve...
8. 5 Indiana Practice Series s 5:6.3, § 5:6.3. Motion to set aside default 2021 Other —
judgment Secondary
Indiana Practice Series Source
judgment after appearance—Motion to set aside default Secondary
Source
On motion and for good cause shown, and upon such terms as the court
prescribes, but not ex parte, the court may set aside a default or the judgment
thereon, for mistake,...
judgment after appearance—Resistance to motion to set aside default Secondary
Source
The resistance should respond to the grounds asserted in the motion to set
aside the default.


11. 9 Iowa Practice Series s 21:15, § 21:15. Motion for retrial after 2021 Other —
published notice Secondary
Source
Except in actions for dissolution of marriage and annulment of marriage, if
judgment is entered against a defendant who did not appear and was served
only by publication or by...
default judgment—First alternative form Secondary
default judgment—Second alternative form Secondary
default judgment—Third alternative form Secondary
judgment—By defendant on counterclaim Secondary
judgment—By defendant on cross-claim Secondary
judgment—By third party plaintiff Secondary
judgment after administrator's refusal to enter default judgment Secondary
default judgment pursuant to Rule 60.02(d)—Service by publication Secondary
21. 4 N.J. Prac. Series s 58:7, § 58:7. Order vacating default 2021 Other —
N.J. Prac. Series Secondary
Source
Rule 6:6-2 which applies to the Special Civil Part was amended effective
January 1, 1988, to provide that a party against whom a default has been
entered for failure to plead or...
22. 1B Vernon's Oklahoma Forms 2d s 8.81, § 8.81. Petition to vacate or 2020 Other —
modify judgment—General form Secondary
Source
opposing party in accordance with 12 Okla. Stat. Ann. § 2004. A brief or list of
authorities is required for a...


23. 1 West's Texas Forms s 11:61, § 11:61. Default judgment 2021 Other —
West's Texas Forms Secondary
Source
See Tex. R. Civ. P. 107, 238, 239, 239a, 240, 241, 243, 244. Rule 107
provides that no default judgment may be granted until the citation, or process
under Rules 108 or 108a or as...
24. 4A West's Texas Forms s 24.1.7, § 24.1.7. Motion to set aside default 2021 Other —
judgment and for new trial Secondary
The preceding form illustrates the format and content of a Motion to Set Aside
Default Judgment and for New Trial satisfying Rule 320 of the Texas Rules of
Civil Procedure. Counsel...
25. Younger on California Motions s 26:58, § 26:58. Memorandum of 2020 Other —
points and authorities Secondary
Source
Attempts at informal resolution. As discussed above, it is often worthwhile to
attempt to resolve the situation before bringing the motion. Such negotiations
can even end up...
26. Younger on California Motions s 26:61, § 26:61. Proposed responsive 2020 Other —
pleading Secondary
Source
Code of Civil Procedure § 473(b), expressly requires that the answer in a
motion to set aside a default or ''other pleading proposed to be filed'' is to
accompany the motion,...
27. 3 Ariz. Legal Forms s 9:34, § 9:34. Motion to set aside default 2020 Other —
judgment Secondary
Source
See Rules 55(c), 59(g) and 60(c), Arizona Rules of Civil Procedure. The
standard for setting aside a default judgment is the same as the standard for
setting aside entry of default...


Number
— 1. Alaska Fur Gallery, Inc. v. First Nat. Bank Case — s 405
Alaska
345 P.3d 76, Alaska, 2015
FINANCE AND BANKING - Judgment. Borrowers
failed to establish sufficiently egregious conduct to
prove fraud upon the court in action against lender.
— Case — s 405
2. Alaskan Adventure Tours, Inc. v. City and
Borough of Yakutat
307 P.3d 955, Alaska, 2013
LITIGATION - Judgment. Allegedly false testimony
did not constitute fraud warranting relief from
judgment.
— Case — s 405
3. Blackstock v. Kohn
994 S.W.2d 947, Mo., 1999
LEGAL SERVICES - Malpractice. Evidence
supported affirmative converse instruction
concerning professional negligence claim.
— 4. Christie v. Patorno Case — s 405
8 La.App. 603, La.App.Orleans, 1928
This is an action of nullity under Art. 607 of the
Code of Practice, which, in part, provides that a
judgment may be annulled “where it appears that it
has been obtained through...
— 5. Conway v. Gill Case — s 405
257 Ill.App. 606, Ill.App. 1 Dist., 1930
Plaintiffs in error sue out this writ of error to reverse
or to have expunged from the record a judgment of
the Superior Court of Cook County entered March
5, 1929, vacating and...
— 6. Duncan v. Duncan Case — s 405+
789 S.W.2d 557, Tenn.Ct.App., 1990
Wife appealed from order of the Circuit Court,
Davidson County, Muriel Robinson, J., denying her
motion for relief from judgment entered in divorce
action. The Court of Appeals,...
— 7. Dvorak v. Dvorak Case — s 405
635 N.W.2d 135, N.D., 2001
FAMILY LAW - Protection Orders. Former husband
did not establish that former wife obtained protective
order by fraud.
— 8. E. R. Thomas & Co. v. Penland Case — s 405
268 P. 867, Wash., 1928
Department 2. Appeal from Superior Court, King
County; Malcolm Douglas, Judge. Action by E. R.
Thomas & Co., Inc., against Elledge R. Penland and
wife and others. From order...


Number
— Case — s 405
9. Fawcett v. Rhyne
63 S.W.2d 349, Ark., 1933
Appeal from Sevier Chancery Court; C. E. Johnson,
Chancellor. Suit by B. W. Fawcett against Mrs.
Ethel Fawcett and others, wherein Allie Rhyne
intervened. From a decree dismissing...
— 10. Girdey v. Girdey Case — s 405
238 N.W. 432, Iowa, 1931
Appeal from District Court, Polk County; John J.
Halloran, Judge. This proceedings is an attempt by
Mollie Girdey to vacate a judgment entered in the
above–entitled cause granting...
— Case — s 405
11. In re Hannerkam's Estate
77 P.2d 814, Ariz., 1938
Proceeding in the matter of the estate of George
A. Hannerkam, deceased, by J. S. Wheeler,
administrator de bonis non of the estate of George
A. Hannerkam, deceased, against Anna...
— 12. Jester v. Wells Fargo Bank N.A. Case — s 405
297 F.Supp.3d 1233, E.D.Okla., 2018
REAL PROPERTY — Jurisdiction. Rooker-
Feldman precluded subject matter jurisdiction over
mortgagor's claims against mortgage assignee
arising out of foreclosure judgment.
— Case — s 405
13. JRD Development Joint Venture v. Catlin
840 P.2d 737, Or.App., 1992
JUDGMENT - Relief From. Witness' alleged perjury
was mere “intrinsic fraud,” not justifying relief from
judgment.
— 14. Lincoln County v. Provident Loan & Inv. Co. Case — s 405
of Lincoln
22 N.W.2d 609, Neb., 1946
Appeal from District Court, Lincoln County; Tewell,
Judge. Tax foreclosure proceeding by the County
of Lincoln against Provident Loan & Investment
Company of Lincoln, Neb., Zell A....
— 15. Little v. Kobos By and Through Kobos Case — s 405
877 P.2d 752, Wyo., 1994
Child and his parents commenced medical
malpractice action against physicians who allegedly
provided improper treatment of osteomyelitis and
septic arthritis of one-year-old...
— 16. Low v. Minichino Case — s 405
267 P.3d 683, Hawai'i App., 2011
REAL PROPERTY - Alternative Dispute Resolution.
Purchaser made prima facie showing that arbitration
award was procured by fraud as to warrant hearing
on motion to vacate.


Number
— 17. Matter of A. R. L. U. Case — s 405
437 P.3d 1233, Or.App., 2019
FAMILY LAW — Judgment. Mother's allegations
in motion to set aside a judgment terminating her
parental rights were of intrinsic fraud rather than
extrinsic fraud.
— Case — s 405
18. Montgomery v. Kennedy
669 S.W.2d 309, Tex., 1984
Appeal was taken from summary judgment entered
by the 171st District Court, El Paso County, Edwin
Berliner, J., denying bill of review filed to set aside
earlier judgment entered...
— Case — s 405
19. Moore v. Jacobs
752 So.2d 1013, Miss., 1999
LITIGATION - Judgment. Defendant was not
entitled to relief from judgment based on perjury and
newly discovered evidence.
— 20. Phillips v. Stear Case — s 405
783 S.E.2d 567, W.Va., 2016
— Case — s 405
21. Pina v. McGill Development Corp.
445 N.E.2d 1059, Mass., 1983
Injured worker, after receiving workmen's
compensation benefits for slip and fall accident
occurring on employer's premises, brought action
against employer's lessor alleging...
— 22. Sallada v. Mock Case — s 405+
121 A. 54, Pa., 1923
Action by Harry E. Sallada and others, executors
of the last will and testament of John J. Sallada,
deceased, against Addison Mock and others. From
a judgment discharging a rule...
— 23. Small v. White Case — s 405
46 P.2d 517, Okla., 1935
Appeal from District Court, Beckham County; T. P.
Clay, Judge. Action brought by Lillie Small against
W. R. White and others to vacate judgment. Petition
to vacate dismissed, and...
— Case — s 405
24. Succession of Hearn
412 So.2d 692, La.App. 2 Cir., 1982
Appeal was taken from judgment entered by the
26th Judicial District Court, Parish of Webster,
Cecil C. Lowe, J., which annulled judgment of
possession. The Court of Appeal,...


Number
— 25. Sun v. Bush Case — s 405
345 S.E.2d 873, Ga.App., 1986
After jury had returned verdict in favor of police
officers in their libel and slander action based
upon claims that they had committed perjury in
prosecution of traffic ticket,...
— Case — s 405
26. Tanbal v. Hall
878 S.W.2d 724, Ark., 1994
In postdivorce proceedings, wife sought to enforce
out-of-state judgment for child support arrearages.
The Chancery Court, Phillips County, Kathleen Bell,
J., denied petition,...
— 27. Webb v. Niceley Case — s 405
151 S.W.2d 768, Ky., 1941
Appeal from Circuit Court, Rockcastle County; J.
S. Sandusky, Judge. Action by R. G. Webb and
another against W. G. Niceley and another, to set
aside a judgment on ground of fraud....
— 28. Wilson v. SunTrust Bank Case — s 405
809 S.E.2d 286, N.C.App., 2017
REAL PROPERTY — Mortgages and Deeds of
Trust. Borrower had no claim for equitable relief to
enjoin a foreclosure sale prior to the time that the
rights of the parties to the sale...
— Case — s 405
29. Wojcicki v. Caragher
849 N.E.2d 1258, Mass., 2006
HEALTH - New Trial. Data showing that 59
participants in study reported history of malignancy
did not constitute newly discovered evidence.
— 30. Yount-Lee Oil Co. v. Federal Crude Oil Co. Case — s 405
92 S.W.2d 493, Tex.Civ.App.-Beaumont, 1936
Writ of Prohibition from District Court, Jefferson
County; R. L. Murray, Judge. Original proceeding
for writ of prohibition by Yount-Lee Oil Company
and another against the Federal...

§ 406. Misconduct of adverse party or counsel as ground..., 49 C.J.S. Judgments §...
Judgments
§ 406. Misconduct of adverse party or counsel as ground for vacating judgment

A judgment may be set aside where it is obtained through the misconduct of an adverse party
or attorney.
A provision of a rule on vacating a judgment on the ground of fraud or misrepresentation may also
include the misconduct of an adverse party,1 such as duress.2 violation of the discovery rules,3 or
an attorney's improper closing argument.4 The rule is aimed at judgments unfairly obtained, not
factually incorrect judgments.5 Misconduct, in this situation, covers accidental omissions where

there is not an intent to deceive, although it is similar to fraud in that either must have prevented
the movant from fully and fairly presenting a case.6
To constitute a valid basis for granting relief, the misconduct of the other party or counsel must
have substantially impeded the moving party's full and fair preparation or presentation of its case,7
and gone to the ultimate issue of the case.8 Thus, an attorney's comment that was not relevant to
any essential issue in the case is not so prejudicial as to justify vacating the judgment.9 In addition,
only misconduct occurring before or at the time a court enters its judgment serves as a basis for
relief from a judgment.10
For purposes of the above rule, a person is not a party merely because the person is directly
interested in the result; a party is one who has the right to control the proceedings, examine and
cross-examine witnesses, and appeal from the order or judgment finally entered; thus, a witness's
misconduct is not necessarily attributed to a party.11
Footnotes
1 Miss.—Estate of McLemore v. McLemore, 63 So. 3d 468 (Miss. 2011).
N.Y.—Citimortgage, Inc. v. Guarino, 42 Misc. 3d 962, 978 N.Y.S.2d 646 (Sup 2014).
2 N.D.—Nieuwenhuis v. Nieuwenhuis, 2014 ND 145, 851 N.W.2d 130 (N.D. 2014).
Vt.—Levinsky v. State, 146 Vt. 316, 503 A.2d 534 (1985).
Required proof
On a motion to open a judgment grounded on duress, a perty must prove (1) a wrongful act or threat, (2) that
left the victim no reasonable alternative, (3) to which the victim in fact acceded, and (4) that the resulting
transaction was unfair to the victim.
Conn.—Zilkha v. Zilkha, 167 Conn. App. 480, 144 A.3d 447 (2016).
3 Colo.—Gold Hill Development Company, L.P. v. TSG Ski & Golf, LLC, 2015 COA 177, 378 P.3d 816
(Colo. App. 2015).
Ind.—Outback Steakhouse of Florida, Inc. v. Markley, 856 N.E.2d 65 (Ind. 2006).
Counsel's characterization of defendant as "con man" not sufficiently egregious to warrant relief
N.C.—Hayes v. Waltz, 246 N.C. App. 438, 784 S.E.2d 607 (2016).
5 Wash.—Sutey v. T26 Corporation, 13 Wash. App. 2d 737, 466 P.3d 1096 (Div. 1 2020), review denied, 2020
WL 7060041 (Wash. 2020).
7 N.M.—Rios v. Danuser Mach. Co., Inc., 110 N.M. 87, 1990-NMCA-031, 792 P.2d 419 (Ct. App. 1990).
8 Minn.—Regents of University of Minnesota v. Medical Inc., 405 N.W.2d 474, 39 Ed. Law Rep. 797 (Minn.
Ct. App. 1987).
9 Me.—Coyne v. Peace, 2004 ME 150, 863 A.2d 885 (Me. 2004).
10 Mo.—State ex rel. Willey Enterprises, Inc. v. City of Kansas City, 848 S.W.2d 14 (Mo. Ct. App. W.D. 1992).

11 Minn.—Regents of University of Minnesota v. Medical Inc., 405 N.W.2d 474, 39 Ed. Law Rep. 797 (Minn.
Ct. App. 1987).

Government Works.


1. Stewart v. Michigan Bell Tel. Co. Mar. 23, 1972 Case
197 N.W.2d 465, 469 , Mich.App.
From order of the Circuit Court, Wayne County, Neal Fitzgerald, J., granting
accelerated judgment of no cause of action in favor of defendants and
dismissing plaintiffs' action due...
2. S.S. Aircraft Co. v. Piper Aircraft Corp. Apr. 20, 1987 Case
406 N.W.2d 304, 306 , Mich.App.
Airplane owner brought action against airplane manufacturer alleging products
liability cause of action and claims for indemnity and contribution for any
liability arising out of...
3. Louisiana Civil Pretrial Procedure s 8:47, § 8:47. Setting aside default 2021 Other —
judgments—Grounds for setting aside Secondary
Source
Generally speaking, annulment of a default judgment under La. Code Civ.
Proc. Ann. art. 2002 and 2004 is available in cases where the judgment is
obtained by fraud or ill...
4. 2 Utah Practice Series RULE 60, Relief from judgment or order 2021 Other —
Utah Practice Series Secondary
Source
The 1998 amendment eliminates as grounds for a motion the following: ''(4)
when, for any cause, the summons in an action has not been personally
served upon the defendant as...


Number
— 1. Citimortgage, Inc. v. Guarino Case — s 406
978 N.Y.S.2d 646, N.Y.Sup., 2014
Judgment of mortgage foreclosure and sale would
not be vacated.
— 2. Coyne v. Peace Case — s 406
863 A.2d 885, Me., 2004
TRANSPORTATION - Snowmobiles. Instruction on
emergency doctrine was warranted in action arising
from snowmobile accident.
— 3. Estate of McLemore v. McLemore Case — s 406
63 So.3d 468, Miss., 2011
ESTATE PLANNING AND PROBATE - Attorney
Fees. Chancellor did not abuse his discretion in
awarding attorney fees to will beneficiaries.
— Case — s 406
4. Gold Hill Development Company, L.P. v.
TSG Ski & Golf, LLC
378 P.3d 816, Colo.App., 2015
GOVERNMENT — Public Lands. Development
company failed to show that public was using route
on property to access its mining claims prior to
removal date of property from public...
— 5. Hayes v. Waltz Case — s 406
784 S.E.2d 607, N.C.App., 2016
TORTS - Emotional Distress. Evidence in alienation
of affections action was sufficient to support finding
that defendant engaged in unlawful conduct within
North Carolina.
— 6. Levinsky v. State Case — s 406
503 A.2d 534, Vt., 1985
On appeal of dismissal of action denominated
“action for declaratory judgment,” the Supreme
Court, 144 Vt. 649, 475 A.2d 242, reversed and
remanded for hearing. On remand, the...
— 7. Nieuwenhuis v. Nieuwenhuis Case — s 406
851 N.W.2d 130, N.D., 2014
FAMILY LAW - Judgment. District court erred as a
matter of law and abused its discretion by vacating
only portions of the original divorce judgment.
— Case — s 406+
Markley
856 N.E.2d 65, Ind., 2006


Number
— 9. Phillips v. Stear Case — s 406+
783 S.E.2d 567, W.Va., 2016
— 10. Regents of University of Minnesota v. Case — s 406+
Medical Inc.
405 N.W.2d 474, Minn.App., 1987
State university licensor brought action against
licensee for royalties and specific performance
allegedly due under patent licensing agreement.
Following verdict for university,...
— 11. Rios v. Danuser Mach. Co., Inc. Case — s 406
792 P.2d 419, N.M.App., 1990
In a products liability action, the District Court, Luna
County, Manuel D.V. Saucedo, D.J., granted the
plaintiff's second motion for a new trial and set
aside the verdict and...
— 12. State ex rel. Willey Enterprises, Inc. v. City Case — s 406
of Kansas City
848 S.W.2d 14, Mo.App. W.D., 1992
RELIEF FROM JUDGMENT - Fraud. Rule
governing relief from judgment based on fraud did
not apply to alleged misconduct of party occurring
after entry of judgment.
— 13. Sutey v. T26 Corporation Case — s 406
466 P.3d 1096, Wash.App. Div. 1, 2020
LITIGATION — Judgment. Vacating default
judgment in unpaid wages action was not warranted
on basis that it was void for improper service.
— 14. Zilkha v. Zilkha Case — s 406
144 A.3d 447, Conn.App., 2016
FAMILY LAW - Spousal Support. Court did not
abuse its discretion in denying ex-husband's motion
to modify alimony.

§ 407. Newly discovered evidence as ground for vacating..., 49 C.J.S. Judgments §...
Judgments
c. Newly Discovered Evidence
§ 407. Newly discovered evidence as ground for vacating judgment, generally

Newly discovered evidence is ground for vacating a judgment, provided it could not have
been discovered with due diligence at the time of the trial.
Newly discovered evidence, as distinguished from matter that should have been presented earlier
in the proceeding,1 is ground for vacating a judgment,2 provided that the party was ignorant of
that evidence and could not have discovered it in time to adduce it at trial, or in time to move for a
new trial, by the exercise of due diligence.3 Evidence in a party's possession before a court renders
judgment generally is not newly discovered evidence warranting relief.4

Ordinarily, newly discovered evidence is limited to evidence that was in existence at the time
of trial or judgment.5 However, there is also authority that a rule permitting motions to alter or
amend a judgment may, in some circumstances, be used to present newly discovered evidence
that was previously unavailable.6 For instance, an exception to the requirement that evidence be
in existence at the time of trial or judgment has been recognized where subsequent events would
make performance of a decree totally useless.7
The same standard applies to a motion to vacate or modify a judgment based on newly discovered
evidence as to a motion for a new trial.8
Matter of public record.
Evidence which is a matter of public record is generally not deemed new evidence which could
not have been discovered with due diligence before trial.9
Footnotes
1 § 398.
2 Ark.—Papa v. Jackson, 188 Ark. 1167, 67 S.W.2d 187 (1934).

Ill.—In re Marriage of Stuart, 141 Ill. App. 3d 314, 95 Ill. Dec. 770, 490 N.E.2d 243 (5th Dist. 1986).
Ind.—Cullison v. Medley, 619 N.E.2d 937 (Ind. Ct. App. 1993).
N.J.—Strong v. Strong, 138 N.J. Eq. 302, 47 A.2d 427 (Ct. Err. & App. 1946).
S.D.—Fullmer v. State Farm Ins. Co., 498 N.W.2d 357 (S.D. 1993).
3 Alaska—Babinec v. Yabuki, 799 P.2d 1325 (Alaska 1990).
Ga.—Rhodes v. Top Dog, Inc., 209 Ga. App. 777, 434 S.E.2d 578 (1993).
Ill.—Gas Power, Inc. v. Forsythe Gas Co., 249 Ill. App. 3d 255, 188 Ill. Dec. 389, 618 N.E.2d 959 (1st
Dist. 1993).
Mass.—Cahaly v. Benistar Property Exchange Trust Co., Inc., 451 Mass. 343, 885 N.E.2d 800 (2008).
Mich.—Stallworth v. Hazel, 167 Mich. App. 345, 421 N.W.2d 685 (1988).
Miss.—Sullivan v. Heal, 571 So. 2d 278 (Miss. 1990).
N.Y.—Mangra v. Mangra, 170 A.D.3d 1156, 97 N.Y.S.3d 153 (2d Dep't 2019).
Wis.—Wenzel v. Wenzel, 2017 WI App 75, 378 Wis. 2d 670, 904 N.W.2d 384 (Ct. App. 2017).
The due diligence requirement is further discussed in § 409.
4 Wyo.—SWC Production, Inc. v. Wold Energy Partners, LLC, 2019 WY 95, 448 P.3d 856 (Wyo. 2019).
5 Ala.—McLeod v. McLeod, 473 So. 2d 1097 (Ala. Civ. App. 1985).

Ariz.—OPI Corp. v. Pima County, 176 Ariz. 625, 863 P.2d 917 (Tax Ct. 1993).
Del.—Bachtle v. Bachtle, 494 A.2d 1253 (Del. 1985).
Idaho—Savage Lateral Ditch Water Users Ass'n v. Pulley, 125 Idaho 237, 869 P.2d 554 (1993).
Ind.—State ex rel. Huppert v. Paschke, 637 N.E.2d 150 (Ind. Ct. App. 1994).
Ky.—Ford v. Ford, 578 S.W.3d 356 (Ky. Ct. App. 2019).
N.Y.—Matter of Jenna R., 207 A.D.2d 403, 615 N.Y.S.2d 459 (2d Dep't 1994).
Documentary evidence supporting foreclosure

Documentary evidence relied on by a mortgagor to support vacatur of a judgment of foreclosure and sale,
entered upon her default in answering the complaint, did not qualify as newly discovered evidence that
would warrant relief from the judgment, since none of the evidence was in existence at the time the judgment
was entered.
N.Y.—EMC Mortg. Corp. v. Asturizaga, 150 A.D.3d 824, 55 N.Y.S.3d 66 (2d Dep't 2017).
6 N.D.—Hanson v. Hanson, 2003 ND 20, 656 N.W.2d 656 (N.D. 2003).
7 Order to rebuild bridge on subsequently vacated road

Iowa—Mulkins v. Board of Sup'rs of Page County, 330 N.W.2d 258 (Iowa 1983).
8 R.I.—National Hotel Associates ex rel. M.E. Venture Management, Inc. v. O. Ahlborg & Sons, Inc., 827
A.2d 646 (R.I. 2003).
9 N.Y.—IMC Mortg. Co. v. Vetere, 142 A.D.3d 954, 37 N.Y.S.3d 329 (2d Dep't 2016).

Government Works.

§ 408. Character of newly discovered evidence justifying..., 49 C.J.S. Judgments §...
Judgments
§ 408. Character of newly discovered evidence justifying opening of judgment

To justify opening a judgment, newly discovered evidence must be admissible, material, and
probably affect the result, rather than cumulative or impeaching.
To obtain relief from judgment based on newly discovered evidence, that evidence must be
genuine,1 relevant and admissible,2 material,3 and would reasonably and probably alter the
findings or result.4 Thus, the motion need not be granted where the evidence offered is not likely
to affect the verdict.5 The evidence may not be merely impeaching6 or cumulative to that which
was introduced at the trial.7

§ 408. Character of newly discovered evidence justifying..., 49 C.J.S. Judgments §...
Footnotes
1 N.Y.—H & Y Realty Co. v. Baron, 193 A.D.2d 429, 597 N.Y.S.2d 343 (1st Dep't 1993).
2 Alaska—Sengupta v. University of Alaska, 139 P.3d 572, 211 Ed. Law Rep. 481 (Alaska 2006).
Haw.—Omerod v. Heirs of Kaheananui, 116 Haw. 239, 172 P.3d 983 (2007).
Minn.—Regents of University of Minnesota v. Medical Inc., 405 N.W.2d 474, 39 Ed. Law Rep. 797 (Minn.
Ct. App. 1987).
Pa.—Matter of Cook, 107 Pa. Commw. 207, 527 A.2d 1115 (1987).
N.Y.—Trimarco v. Data Treasury Corp., 146 A.D.3d 1008, 46 N.Y.S.3d 640 (2d Dep't 2017).
Evidence demonstrably germane to substantive issues
Colo.—Southeastern Colorado Water Conservancy Dist. v. O'Neill, 817 P.2d 500 (Colo. 1991).
4 Conn.—Bozelko v. Commissioner of Correction, 196 Conn. App. 627, 230 A.3d 848 (2020).
Ky.—Furlong Development Co., LLC v. Georgetown-Scott County Planning and Zoning Commission, 504
S.W.3d 34 (Ky. 2016).
N.Y.—Major v. Beach, 182 A.D.3d 941, 123 N.Y.S.3d 243 (3d Dep't 2020).
R.I.—Berman v. Sitrin, 101 A.3d 1251 (R.I. 2014).
S.D.—Gibson v. Gibson Family Ltd. Partnership, 2016 SD 26, 877 N.W.2d 597 (S.D. 2016).
5 Conn.—Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 952 A.2d 1 (2008).
Colo.—Southeastern Colorado Water Conservancy Dist. v. O'Neill, 817 P.2d 500 (Colo. 1991).
Fla.—Snook v. Firestone Tire & Rubber Co., 485 So. 2d 496 (Fla. 5th DCA 1986).
Ill.—Fentress v. Triple Min., Inc., 261 Ill. App. 3d 930, 200 Ill. Dec. 1, 635 N.E.2d 102 (4th Dist. 1994).
Ct. App. 1987).
Mont.—In re B.B., 2001 MT 285, 307 Mont. 379, 37 P.3d 715 (2001).

Government Works.

§ 409. Due diligence requirement for vacating judgment on..., 49 C.J.S. Judgments §...
Judgments
§ 409. Due diligence requirement for vacating

judgment on ground of newly discovered evidence

Due diligence must be established when moving to vacate a judgment on the ground of newly
discovered evidence, and the opponent's conduct may be relevant in this regard.
A motion to vacate a judgment based on newly discovered evidence requires a showing that the
evidence was not discoverable at the time of the original hearing by the exercise of ordinary
diligence.1 The movant must show what circumstances prevented presenting the evidence earlier.2
A bare assertion that reasonable diligence has been used is insufficient to show due diligence.3
Moreover, a finding of due diligence does not rest upon abstract conclusions about, or assertions

§ 409. Due diligence requirement for vacating judgment on..., 49 C.J.S. Judgments §...
of, its exercise but upon a particularized showing that all the methods of discovery reasonably
available to counsel were used and could not uncover the newly found evidence.4
The opponent's conduct is relevant to the determination of due diligence.5 Fraudulent concealment
of evidence is considered,6 and the requirement of due diligence need not be rigidly enforced
where evidence of unconscionable behavior is presented.7
Footnotes
1 Conn.—Wells Fargo Bank, N.A. v. Tarzia, 186 Conn. App. 800, 201 A.3d 511 (2019).
Ind.—Barton v. Barton, 47 N.E.3d 368 (Ind. Ct. App. 2015).
N.Y.—Major v. Beach, 182 A.D.3d 941, 123 N.Y.S.3d 243 (3d Dep't 2020).
R.I.—Berman v. Sitrin, 101 A.3d 1251 (R.I. 2014).
S.C.—Morin v. Innegrity, LLC, 424 S.C. 559, 819 S.E.2d 131 (Ct. App. 2018).
2 Ala.—McCollough v. Regions Bank, 955 So. 2d 405 (Ala. 2006).
Misplaced evidence
Finding misplaced evidence does not transform it into newly discovered evidence, for purposes of
determining whether it is properly presented on a motion for relief from a judgment.
Tenn.—Andrews Distributing Co. v. Oak Square at Gatlinburg, Inc., 757 S.W.2d 663 (Tenn. 1988) (overruled
on other grounds by, Spence v. Allstate Ins. Co., 883 S.W.2d 586 (Tenn. 1994)).
Inability to exploit evidence
Evidence that was within a party's possession prior to trial was not newly discovered, where the proponent
lacked the funds to exploit it by hiring an expert.
Ind.—Ira v. Brock, 615 N.E.2d 447 (Ind. Ct. App. 1993).
5 Mass.—Cahaly v. Benistar Property Exchange Trust Co., Inc., 451 Mass. 343, 885 N.E.2d 800 (2008).
6 Ill.—People v. B.R. MacKay & Sons, Inc., 262 Ill. App. 3d 389, 198 Ill. Dec. 915, 633 N.E.2d 756 (1st
Dist. 1993).
7 Ill.—Gas Power, Inc. v. Forsythe Gas Co., 249 Ill. App. 3d 255, 188 Ill. Dec. 389, 618 N.E.2d 959 (1st
Dist. 1993).

Government Works.

§ 410. Opening of judgment for errors of law, 49 C.J.S. Judgments § 410
Judgments
d. Error or Irregularity
§ 410. Opening of judgment for errors of law

There is disagreement whether a judgment may be opened for errors of law.
It has been often held that statutes and rules of civil procedure governing relief from judgment
do not provide a basis for vacating a judgment on the ground of error or mistake of law,1 under
provisions for relief based on "mistake,"2 and such errors must be raised on appeal.3 Under other
authority, an error of law in a court's decision may be corrected by vacating the judgment,4 under
provisions for relief based upon "mistake"5 or "any other reason justifying relief."6 Of course,

§ 410. Opening of judgment for errors of law, 49 C.J.S. Judgments § 410
where specifically authorized by statute, a court may vacate a judgment on the ground that it is
based on an error of law.7
Footnotes
1 Fla.—Eastern Ceiling and Supply Corp., Inc. v. Powerhouse Insulation, Inc., 589 So. 2d 383 (Fla. 4th DCA
1991).
Ill.—Anest v. Bailey, 265 Ill. App. 3d 58, 202 Ill. Dec. 473, 637 N.E.2d 1209 (2d Dist. 1994).
La.—Hall v. Hall, 611 So. 2d 173 (La. Ct. App. 5th Cir. 1992).
Minn.—Arzt v. Arzt, 361 N.W.2d 135 (Minn. Ct. App. 1985).
N.C.—Hagwood v. Odom, 88 N.C. App. 513, 364 S.E.2d 190 (1988).
N.D.—Production Credit Ass'n of Minot v. Dobrovolny, 415 N.W.2d 489 (N.D. 1987).
Wash.—Haley v. Highland, 142 Wash. 2d 135, 12 P.3d 119 (2000).
Unless court lacked jurisdiction or violated due process
R.I.—Allstate Ins. Co. v. Lombardi, 773 A.2d 864 (R.I. 2001).
2 Ala.—McLeod v. McLeod, 473 So. 2d 1097 (Ala. Civ. App. 1985).
Kan.—Matter of Estate of Newland, 240 Kan. 249, 730 P.2d 351 (1986).
As to mistake as a ground for relief from judgment, generally, see § 417.
Does not come within various grounds
If a court merely wrongly decides a point of law, that is not mistake, inadvertence, surprise, or excusable
neglect correctable by a motion to set aside the judgment; the phrase "mistake" as used in a rule of civil
procedure is concerned with minor oversights and clerical errors.
Utah—Fisher v. Bybee, 2004 UT 92, 104 P.3d 1198 (Utah 2004).
3 Ill.—Anest v. Bailey, 265 Ill. App. 3d 58, 202 Ill. Dec. 473, 637 N.E.2d 1209 (2d Dist. 1994).
N.C.—Ottway Burton, P.A. v. Blanton, 107 N.C. App. 615, 421 S.E.2d 381 (1992).
Wash.—In re Marriage of Tang, 57 Wash. App. 648, 789 P.2d 118 (Div. 1 1990).
4 N.Y.—Kirisits v. State, 107 A.D.2d 156, 485 N.Y.S.2d 890 (4th Dep't 1985).
5 N.M.—Deerman v. Board of County Com'rs of County of Dona Ana, 116 N.M. 501, 1993-NMCA-123, 864
P.2d 317 (Ct. App. 1993).
6 Idaho—First Sec. Bank of Idaho, N.A. v. Stauffer, 112 Idaho 133, 730 P.2d 1053 (Ct. App. 1986).
Vacation of judgments for "any other reason justifying relief" is generally discussed in §§ 423 et seq.
7 Cal.—Craven v. Crout, 163 Cal. App. 3d 779, 209 Cal. Rptr. 649 (1st Dist. 1985).

Government Works.

§ 411. Errors of fact as ground for vacating judgment, 49 C.J.S. Judgments § 411
Judgments
§ 411. Errors of fact as ground for vacating judgment

Errors of fact going to the validity or regularity of a judgment constitute grounds for relief
from the judgment.
Error or mistake of fact going to the validity or regularity of the judgment has been held a ground,
sometimes by virtue of statutory provisions, for relief from the judgment.1 Errors of fact within
this rule are errors in material matters, prejudicial to the movant, and which, if known, would have
prevented rendition of the judgment.2
Erroneous or mistaken findings of the facts at issue do not afford a ground for vacating a judgment.3

§ 411. Errors of fact as ground for vacating judgment, 49 C.J.S. Judgments § 411
Footnotes
1 Ill.—Loew v. Krauspe, 320 Ill. 244, 150 N.E. 683 (1926).
Miss.—Lott v. Illinois Cent. R. Co., 193 Miss. 443, 10 So. 2d 96 (1942).
Tex.—John E. Quarles Co. v. Lee, 58 S.W.2d 77 (Tex. Comm'n App. 1933).
W. Va.—Yost v. O'Brien, 100 W. Va. 408, 130 S.E. 442 (1925).
As to opening a judgment on the basis of mistake of fact, generally, see § 417.
2 Conn.—Stolman v. Boston Furniture Co., 120 Conn. 235, 180 A. 507 (1935).
Ill.—Jacobson v. Ashkinaze, 337 Ill. 141, 168 N.E. 647 (1929).
Miss.—Lott v. Illinois Cent. R. Co., 193 Miss. 443, 10 So. 2d 96 (1942).
3 Mass.—Chagnon v. Chagnon, 300 Mass. 309, 15 N.E.2d 231 (1938).
N.M.—Porter v. Alamocitos Land & Livestock Co., 1925-NMSC-036, 32 N.M. 344, 256 P. 179 (1925).

Government Works.

§ 412. Defects and objections concerning parties as..., 49 C.J.S. Judgments §...
Judgments
§ 412. Defects and objections concerning parties

as grounds for opening or vacating judgment

A judgment may be opened or vacated for serious defects or objections concerning parties,
and generally for the disability or death of a party.
A judgment may be vacated for nonjoinder of a necessary1 or indispensable2 party, where it was
rendered on a joint contract against only some of the defendants,3 it affects persons who were
never made parties to the suit,4 or it appears that the real party in interest has not been joined.5
However, a judgment may not be set aside on the ground that an indispensable party had not been

§ 412. Defects and objections concerning parties as..., 49 C.J.S. Judgments §...
joined, where the unnamed party was a participating nonparty who is bound by the judgment.6
Similarly, a corporation may not have a judgment vacated on the basis that it was not a proper
party, where that issue was considered on the corporation's appeal.7
A judgment may not be set aside because of a technical objection, not appearing on the face of the
record, to the plaintiff's capacity to sue.8 Legal disability, such as infancy or insanity, of a party
against whom a judgment is improvidently rendered without regard to that disability, is a ground
for opening or vacating a judgment,9 in some instances under statutes to that effect.10
Death of party.
It is proper for a court to vacate a judgment that was rendered for or against a party after that
person's death,11 particularly where statutes so provide.12 However, a party's death after judgment
has been rendered does not warrant vacating it, even though the cause of action would not have
survived.13
Footnotes
1 Ky.—Hazard Lumber & Supply Co. v. Horn, 228 Ky. 554, 15 S.W.2d 492 (1929).
2 Pa.—DeCoatsworth v. Jones, 536 Pa. 414, 639 A.2d 792 (1994).
3 Tex.—Uher v. Cameron State Bank, 59 Tex. Civ. App. 134, 125 S.W. 321 (1910).
4 Mich.—Rosenfeld v. Dingeman, 210 Mich. 689, 177 N.W. 946 (1920).
5 N.M.—Miller v. Klasner, 1914-NMSC-026, 19 N.M. 21, 140 P. 1107 (1914).
6 Ala.—Adams v. Boyles, 610 So. 2d 1156 (Ala. 1992).
7 W. Va.—Kerner v. Affordable Living, Inc., 212 W. Va. 312, 570 S.E.2d 571 (2002).
8 Tex.—Sayles v. First State Bank & Trust Co. of Abilene, 199 S.W. 823 (Tex. Civ. App. Amarillo 1917).
Vt.—Town of Washington v. Emmons, 181 Vt. 586, 2007 VT 22, 925 A.2d 1002 (2007).
9 Mass.—Herlihy v. Kane, 310 Mass. 457, 38 N.E.2d 620 (1941).
10 Ark.—Hare v. Ft. Smith & W.R. Co., 104 Ark. 187, 148 S.W. 1038 (1912).
11 Ala.—Griffin v. Proctor, 244 Ala. 537, 14 So. 2d 116 (1943).
12 Okla.—Town of Jefferson v. Hicks, 1912 OK 578, 33 Okla. 407, 126 P. 739 (1912).
13 Colo.—Ahearn v. Goble, 90 Colo. 173, 7 P.2d 409 (1932).

Government Works.

§ 413. Defects in pleadings as grounds for opening judgment, 49 C.J.S. Judgments § 413
Judgments
§ 413. Defects in pleadings as grounds for opening judgment

While ordinarily a judgment will not be opened for mere defects in the pleadings, relief may
be given where there is a fatal error.
A judgment will not be opened for defects or insufficiency in the pleadings,1 especially where the
alleged problem is amendable,2 or has been waived, as by going to trial,3 or has been cured by
the verdict,4 or otherwise will not result in a miscarriage of justice.5 The omission of an essential
allegation from a pleading may not be a basis for setting aside a judgment, unless it has materially

§ 413. Defects in pleadings as grounds for opening judgment, 49 C.J.S. Judgments § 413
prejudiced the defendant.6 However, a judgment may be set aside where there is a fatal error
relating to the pleadings.7
Footnotes
1 Ariz.—Hawkins v. Leake, 42 Ariz. 121, 22 P.2d 833 (1933).
Mo.—Harrison v. Slaton, 49 S.W.2d 31 (Mo. 1932).
Tex.—Empire Gas & Fuel Co. v. Noble, 36 S.W.2d 451 (Tex. Comm'n App. 1931).
Failure to state cause of action
Ariz.—Hawkins v. Leake, 42 Ariz. 121, 22 P.2d 833 (1933).
Me.—Foley v. Adam, 638 A.2d 718 (Me. 1994).
Okla.—Simmons v. Howard, 1929 OK 28, 136 Okla. 118, 276 P. 718 (1929).
3 Ark.—Manhattan Const. Co. v. Atkisson, 191 Ark. 920, 88 S.W.2d 819 (1935).
Mo.—McFadden v. Mullins, 234 Mo. App. 1056, 136 S.W.2d 74 (1940).
4 Ga.—Auld v. Schmelz, 199 Ga. 633, 34 S.E.2d 860 (1945).
5 Cal.—Myers v. Metropolitan Trust Co. of California, 22 Cal. App. 2d 284, 70 P.2d 992 (2d Dist. 1937).
6 Conn.—Tedesco v. City of Stamford, 215 Conn. 450, 576 A.2d 1273 (1990).
7 W. Va.—Collins v. Dravo Contracting Co., 114 W. Va. 229, 171 S.E. 757 (1933).

Government Works.

§ 414. Irregularity of judgment as ground for opening or..., 49 C.J.S. Judgments §...
Judgments
§ 414. Irregularity of judgment as ground for opening or vacating judgment

West's Key Number Digest, Judgment 353, 354, 359
A material and substantial irregularity that has not been cured or waived is a ground for
opening or vacating a judgment, if the complaining party is adversely affected.
Irregularity in the proceedings leading to the entry of a judgment, as distinguished from mere
error,1 is a ground for relief from the judgment,2 provided it is prejudicial or dangerous to the
substantial rights and interest of the affected party.3 The purposes for vacating judgments resulting
from irregularities are to promote the policy that every cause of action should be tried on the merits,
and ensure that litigation is fair and orderly.4

An irregular judgment is one that is materially contrary to an established form of procedure

for the orderly administration of justice.5 "Irregularity" usually means an irregularity of process
or procedure, and not an error of which a defendant had notice and could have challenged.6
Irregularities justifying relief from a judgment include irregularities caused by the court itself,7 or
by the clerk.8 It also includes entering judgment in violation of a bankruptcy stay,9 or disregarding
no-fault benefit payments.10 Indeed, the court may grant a motion to vacate a final judgment based
on any error, where vacation is necessary to do justice between the parties.11 On the other hand, a
court's power to modify or vacate a final judgment is limited, even if aspects of that final judgment
are erroneous.12 A judgment should not be vacated because a transcript is unavailable, unless and
until all reasonable solutions to the problem are exhausted.13 Counsel's mere failure to respond
after proper notice does not present an irregularity so as to permit vacation of a judgment or order.14
While irregularity, as defined by one statute, requires a serious jurisdictional defect,15 certain
procedural irregularities, not amounting to lack of jurisdiction over the person or subject matter, are
sometimes characterized as making a judgment "voidable," which means that those judgments may
be set aside on a timely application in the same proceedings, as a matter of judicial discretion.16
Irregularity apparent on face of record.
Relief from judgment may not be granted, or a judgment vacated, for irregularity, unless the
irregularity appears on the face of the record,17 and does not depend on proof beyond the record.18
Under a court rule, a nonamendable defect that appears on the face of the record is a ground for
setting aside a judgment.19
Footnotes
1 § 410.
2 Ariz.—American Sur. Co. of N.Y. v. Mosher, 48 Ariz. 552, 64 P.2d 1025 (1936).
Md.—Fleisher v. Fleisher Co., 60 Md. App. 565, 483 A.2d 1312 (1984).
Mont.—Stenner v. Colorado-Montana Mines Ass'n, 116 Mont. 261, 149 P.2d 546 (1944).
Mo.—Eastin v. Franklin, 806 S.W.2d 57 (Mo. Ct. App. S.D. 1991).
Tex.—British General Ins. Co. v. Ripy, 130 Tex. 101, 106 S.W.2d 1047 (Comm'n App. 1937).
Wash.—In re Marriage of Tang, 57 Wash. App. 648, 789 P.2d 118 (Div. 1 1990).
Wyo.—Ramsay v. Gottsche, 51 Wyo. 516, 69 P.2d 535 (1937).
3 Ill.—City of Des Plaines v. Boeckenhauer, 383 Ill. 475, 50 N.E.2d 483 (1943).
Md.—Harvey v. Slacum, 181 Md. 206, 29 A.2d 276 (1942).
Okla.—Le Roi Co. v. Grimes, 1943 OK 368, 193 Okla. 430, 144 P.2d 973 (1943).
Pa.—Moyer v. Meray, 148 Pa. Super. 284, 25 A.2d 612 (1942).

Wis.—Federal Land Bank of St. Paul v. Olson, 239 Wis. 448, 1 N.W.2d 752 (1942).
Invalidity of judgment as ground for vacating it, see § 399.
Lack of notice
A defendant showed good cause for setting aside a judgment entered against him after he failed to appear for
trial, where neither the defendant nor his attorney received written notice of a special trial setting, and the
defendant was prejudiced, as he asserted a meritorious defense denying representation, and the defendant
was subject to garnishment and was not provided notice of the judgment so as to allow for a timely direct
appeal.
Mo.—Tinsley v. Gosnell, 873 S.W.2d 943 (Mo. Ct. App. E.D. 1994).
4 Iowa—In re Marriage of Cutler, 588 N.W.2d 425 (Iowa 1999).
5 Mo.—Burris v. Terminal R.R. Ass'n, 835 S.W.2d 535 (Mo. Ct. App. E.D. 1992).
6 Md.—Manigan v. Burson, 160 Md. App. 114, 862 A.2d 1037 (2004).
Factors considered
In determining whether an irregularity has occurred that would warrant the correction, vacation, or
modification of a judgment on grounds of irregularity or fraud, a party must have suffered an adverse ruling
due to action or inaction by the court or court personnel, the action or inaction must have been contrary to
some prescribed rule, mode of procedure, or court practice involved in the conduct of a lawsuit, and the party
must not have caused, been a party to, or had prior knowledge of the breach of the rule, mode of procedure,
or practice of the court.
Iowa—In re Marriage of Cutler, 588 N.W.2d 425 (Iowa 1999).
7 Neb.—Interstate Printing Co. v. Department of Revenue, 236 Neb. 110, 459 N.W.2d 519 (1990).
Wash.—Buckley v. Snapper Power Equipment Co., 61 Wash. App. 932, 813 P.2d 125 (Div. 1 1991).
Wis.—In re Paternity of M.T.H., 140 Wis. 2d 843, 412 N.W.2d 164 (Ct. App. 1987).
8 Clerk sent notice to attorney's former address
Md.—J.T. Masonry Co., Inc. v. Oxford Const. Services, Inc., 74 Md. App. 598, 539 A.2d 694 (1988),
judgment aff'd, 314 Md. 498, 551 A.2d 869 (1989).
9 Md.—Home Indem. Co. v. Killian, 94 Md. App. 205, 616 A.2d 906 (1992).
10 N.D.—Braunberger v. Interstate Engineering, Inc., 2000 ND 45, 607 N.W.2d 904 (N.D. 2000).
11 Ill.—In re Marriage of Stuart, 141 Ill. App. 3d 314, 95 Ill. Dec. 770, 490 N.E.2d 243 (5th Dist. 1986).
12 Colo.—People ex rel. J.A.U. v. R.L.C., 47 P.3d 327 (Colo. 2002).
13 Ohio—Gaines & Stern Co., L.P.A. v. Schwarzwald, Robiner, Wolf and Rock Co., L.P.A., 70 Ohio App. 3d
643, 591 N.E.2d 866 (8th Dist. Cuyahoga County 1990), dismissed, 59 Ohio St. 3d 718, 572 N.E.2d 691
(1991).
14 Okla.—Washington v. Tulsa County, 2006 OK 92, 151 P.3d 121 (Okla. 2006).
15 Okla.—VanNort v. Davis, 1990 OK CIV APP 95, 800 P.2d 1082 (Ct. App. Div. 3 1990).
16 Mont.—Stanley v. Lemire, 2006 MT 304, 334 Mont. 489, 148 P.3d 643 (2006).
17 Ga.—Hardeman v. Roberts, 214 Ga. App. 484, 448 S.E.2d 254 (1994).
Mo.—D.L.G., Sr. v. E.L.S., 774 S.W.2d 477 (Mo. 1989).
Absence of affidavit apparent on record
Mo.—T.W.I. Investments, Inc. v. Pacific Aggregates, Inc., 726 S.W.2d 807 (Mo. Ct. App. E.D. 1987).
18 Mo.—T.W.I. Investments, Inc. v. Pacific Aggregates, Inc., 726 S.W.2d 807 (Mo. Ct. App. E.D. 1987).
Failure to conduct jury trial
The failure to conduct a jury trial is a nonamendable defect warranting a motion to set aside judgment where
no waiver of jury trial has appeared of record.
Ga.—Barner v. Binkley, 304 Ga. App. 73, 695 S.E.2d 398 (2010).

Government Works.

§ 415. Opening of judgment for irregularity in entry, 49 C.J.S. Judgments § 415
Judgments
§ 415. Opening of judgment for irregularity in entry

A judgment may be opened if its entry was unauthorized, inadvertent, improvident, or

premature.
A judgment may be opened if it was entered by the clerk without any authority, as a result of
mistake, inadvertence, or wrongful intent.1 This rule applies where the entry was ordered by the
court inadvertently, improvidently, or under a mistake.2

§ 415. Opening of judgment for irregularity in entry, 49 C.J.S. Judgments § 415
While there is some authority to the contrary,3 it has been held that a judgment may be vacated
if it was prematurely entered,4 at least where the rights of a party have been prejudiced because
of the failure to adhere to the established rules of procedure,5 or the judgment was made before
the case was ripe for trial or hearing.6
While there is authority that lack of notice from the clerk's office of the entry of an order or
judgment is not a ground for relief,7 the fact that a party did not receive required written notice
of the entry of judgment and was misinformed that a judgment had not been entered constituted
exceptional circumstances warranting relief from the judgment, under a rule allowing relief for
"any other reason justifying relief,"8 and reentering the judgment, to allow that party to present
otherwise untimely posttrial motions.9
Footnotes
1 Ala.—Du Pree v. Hart, 242 Ala. 690, 8 So. 2d 183 (1942).
Okla.—Abernathy v. Huston, 1933 OK 597, 166 Okla. 184, 26 P.2d 939 (1933).
Pa.—DeMarco v. Borough of East McKeesport, 125 Pa. Commw. 13, 556 A.2d 977 (1989).
S.D.—Janssen v. Tusha, 68 S.D. 639, 5 N.W.2d 684 (1942).
Tex.—O'Neil v. Norton, 33 S.W.2d 733 (Tex. Comm'n App. 1931).
2 Cal.—Carter v. Shinsako, 42 Cal. App. 2d 9, 108 P.2d 27 (2d Dist. 1940).
3 Ark.—Magnolia Grocer Co. v. Farrar, 195 Ark. 1069, 115 S.W.2d 1094 (1938).
4 R.I.—Baus v. Coffey, 53 R.I. 227, 165 A. 593 (1933).
5 Okla.—Knell v. Burnes, 1982 OK 35, 645 P.2d 471 (Okla. 1982).
6 Ala.—Abston v. Aliceville Tractor Co., Inc., 518 So. 2d 1252 (Ala. 1987).
Ill.—Simon v. Balasic, 316 Ill. App. 442, 45 N.E.2d 98 (1st Dist. 1942).
Wyo.—Ramsay v. Gottsche, 51 Wyo. 516, 69 P.2d 535 (1937).
7 Ala.—Altmayer v. Stremmel, 891 So. 2d 305 (Ala. 2004).
8 § 423.
9 Miss.—Hartford Underwriters Ins. Co. v. Williams, 936 So. 2d 888 (Miss. 2006).

Government Works.

§ 416. Mistake, inadvertence, surprise, or excusable..., 49 C.J.S. Judgments §...
Judgments
e. Mistake, Inadvertence, Surprise, Excusable Neglect, Casualty, or Misfortune
§ 416. Mistake, inadvertence, surprise, or excusable neglect

as grounds for opening or vacating judgment, generally

A trial court may grant relief from judgments by reason of mistake, inadvertence, surprise,
excusable neglect, casualty, or misfortune.
It is the general rule, usually based on statutes or rules so providing, that a trial court may, in its
discretion, grant relief from judgments resulting from mistake, inadvertence, surprise, excusable
neglect, casualty, or misfortune.1 Although most often used when relief is sought from a default
judgment, those rules apply to any final judgment.2

A rule providing for relief from a judgment based on mistake, inadvertence, surprise or excusable
neglect is remedial, entitled to a liberal construction with a view to effectuate just results,3 but
provides an extreme remedy, to be used only under extraordinary circumstances.4 Granting relief
under such a rule depends on the facts of each case,5 and is a matter of the trial court's discretion,6 to
be exercised based on whether the moving party establishes the alleged grounds and demonstrates
a meritorious defense, as well as considering the movant's fault and prejudice to the other party.7
Relief should be granted only when it is sought in good faith and when no injustice will result.8
The movant must provide some explanation of the error from which the trial court might determine
that an accident or mistake had occurred,9 which involves something outside of the moving
party's control, or something that a reasonably prudent person would not be expected to foresee.10
Mistake, inadvertence, and excusable neglect require some justification for an error beyond mere
carelessness or ignorance of the law.11 Relief should not be granted where doing so would be to
grant a new trial at the capricious demand of a party who was either grossly negligent or simply
had a change of mind after the judgment.12 While such a statute or rule may afford relief from the
consequences of a wide variety of procedural errors,13 it does not protect a party from a tactical
error.14
Relief for mistakes, inadvertence, or excusable neglect is available "from a final judgment," which
means that those grounds must have occurred at or before the entry of the final judgment and must
have resulted in the judgment's entry.15 However, the motion may not be used to relitigate matters
already heard in the proceeding.16
Footnotes
1 Ala.—Bradford v. Bradford, 628 So. 2d 732 (Ala. Civ. App. 1993).
Colo.—Tyler v. Adams County Dept. of Social Services ex rel. Tyler, 697 P.2d 29 (Colo. 1985).
Conn.—Jaconski v. AMF, Inc., 208 Conn. 230, 543 A.2d 728 (1988).
Fla.—Horticultural Enterprises v. Plantas Decorativas, LTDA, 623 So. 2d 821 (Fla. 5th DCA 1993).
Idaho—Ausman v. State, 124 Idaho 839, 864 P.2d 1126 (1993).
Kan.—Midland Bank of Overland Park v. Rieke, 18 Kan. App. 2d 830, 861 P.2d 129 (1993).
Mass.—Parrell v. Keenan, 389 Mass. 809, 452 N.E.2d 506 (1983).
N.Y.—O'Brien v. O'Brien, 88 A.D.3d 775, 931 N.Y.S.2d 78 (2011).
Ohio—State ex rel. Citizens for Responsible Taxation v. Scioto Cty. Bd. of Elections, 67 Ohio St. 3d 134,
616 N.E.2d 869 (1993).
S.D.—Hrachovec v. Kaarup, 516 N.W.2d 309 (S.D. 1994).
Tenn.—In re Estate of King, 760 S.W.2d 208 (Tenn. 1988).
Utah—Richins v. Delbert Chipman & Sons Co., Inc., 817 P.2d 382 (Utah Ct. App. 1991).
2 S.C.—Goodson v. American Bankers Ins. Co. of Florida, 295 S.C. 400, 368 S.E.2d 687 (Ct. App. 1988).

As to vacating judgments by default, see §§ 525 et seq.

3 Ariz.—Brown v. Beck, 64 Ariz. 299, 169 P.2d 855 (1946).
Cal.—Maynard v. Brandon, 36 Cal. 4th 364, 30 Cal. Rptr. 3d 558, 114 P.3d 795 (2005).
Ohio—Miami Sys. Corp. v. Dry Cleaning Computer Sys. Inc., 90 Ohio App. 3d 181, 628 N.E.2d 122 (1st
Dist. Hamilton County 1993).
S.C.—Jenkins v. Jones, 208 S.C. 421, 38 S.E.2d 255 (1946).
4 Ala.—Wright v. Wright, 628 So. 2d 915 (Ala. Civ. App. 1993).
S.D.—Crothers v. Crothers, 2001 SD 78, 630 N.W.2d 103 (S.D. 2001).
Granted sparingly
N.J.—In re Guardianship of J.N.H., 172 N.J. 440, 799 A.2d 518 (2002).
5 S.D.—Strutton v. SDG Macerich Properties LP, 2005 SD 44, 695 N.W.2d 242 (S.D. 2005).
English not first language
A motorist's alleged misunderstanding of her rights because English was not her first language did not
entitle her to relief (as a factual matter) from a favorable judgment under the general ground of mistake,
inadvertence, surprise or excusable neglect, so that she could file a counterclaim against another driver
arising out of an automobile collision, where the motorist was represented by counsel, and her attorneys
did not claim that they attempted to advise her of her right to file a counterclaim and were unable to make
their point.
Alaska—Dickerson v. Goodman, 161 P.3d 1205 (Alaska 2007).
6 S.D.—Crothers v. Crothers, 2001 SD 78, 630 N.W.2d 103 (S.D. 2001).
Wyo.—Largent v. Largent, 2008 WY 106, 192 P.3d 130 (Wyo. 2008).
7 Wyo.—Largent v. Largent, 2008 WY 106, 192 P.3d 130 (Wyo. 2008).
The meritorious defense requirement is discussed in § 447.
Factors considered
Considerations when ruling on a motion for relief from a judgment based on grounds including mistake,
inadvertence, newly discovered evidence, and fraud, are (1) final judgments should not be lightly disturbed;
(2) the motion is not to be used as substitute for appeal; (3) the rule should be liberally construed to achieve
substantial justice; (4) whether the motion was made within a reasonable time; (5) [relevant only to default
judgments]; (6) whether, if the judgment was rendered after a trial on the merits, the movant had a fair
opportunity to present a claim or defense; (7) any intervening equities that would make it inequitable to
grant relief; and (8) any other factor relevant to the justice of the judgment under attack.
Miss.—R.K. v. J.K., 946 So. 2d 764 (Miss. 2007), disapproved on other grounds in later appeal, 30 So. 3d
290 (Miss. 2009).
8 Cal.—Hewins v. Walbeck, 60 Cal. App. 2d 603, 141 P.2d 241 (4th Dist. 1943).
9 Tex.—Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682 (Tex. 2002).
10 N.H.—In re Birmingham, 154 N.H. 51, 904 A.2d 636 (2006).
11 Miss.—Perkins v. Perkins, 787 So. 2d 1256 (Miss. 2001).

Mont.—In re Marriage of Schoenthal, 2005 MT 24, 326 Mont. 15, 106 P.3d 1162 (2005).
12 Cal.—Elms v. Elms, 72 Cal. App. 2d 508, 164 P.2d 936 (2d Dist. 1946).
13 Cal.—Maynard v. Brandon, 36 Cal. 4th 364, 30 Cal. Rptr. 3d 558, 114 P.3d 795 (2005).
14 Vt.—Sandgate School Dist. v. Cate, 178 Vt. 625, 2005 VT 88, 883 A.2d 774, 202 Ed. Law Rep. 215 (2005).
Made by party without attorney
Colo.—People ex rel. J.A.U. v. R.L.C., 47 P.3d 327 (Colo. 2002).
15 Tenn.—Henry v. Goins, 104 S.W.3d 475 (Tenn. 2003).
16 W. Va.—Coffman v. West Virginia Div. of Motor Vehicles, 209 W. Va. 736, 551 S.E.2d 658 (2001).

Government Works.

§ 417. Mistake as ground for opening judgment, 49 C.J.S. Judgments § 417
Judgments
§ 417. Mistake as ground for opening judgment

A judgment taken against a person by mistake may be opened, if the mistake is one of fact.
A judgment taken against a person by mistake may be opened.1 However, this rule applies only to
mistakes of fact, not to mistakes of law,2 unless otherwise provided by statute.3 While the principle
that relief is not available from mistakes of law has generally been applied in cases involving
mistakes by counsel,4 it also applies to a pro se litigant.5 Relief from a judgment for mistake will
only be granted when the circumstances are extraordinary and the failure to grant relief would
result in substantial injustice.6

For this purpose, a "mistake" is some unintentional act, omission, or error arising from ignorance,
surprise, imposition, or misplaced confidence.7 There is also authority that a "mistake" is confined
to jurisdictional mistakes, i.e., where the court did not have the power to enter the judgment.8
The mistake for which a party seeks relief may be a mistake of any party to the action, and need
not be the movant's mistake.9 The mistake may be a mutual mistake or misunderstanding of the
parties,10 or the court's mistake arising from misinformation or a misunderstanding relating to
matters of fact.11 However, a mistake made by the person served to deliver the complaint and
process to another person is not a basis for a motion to set aside a judgment.12
The movant is required to make some showing why failing to avoid the mistake was justified,
which needs to be more than mere unhappiness with the judgment13 or carelessness.14
Footnotes
1 Cal.—Salazar v. Steelman, 22 Cal. App. 2d 402, 71 P.2d 79 (2d Dist. 1937).
Md.—Harvey v. Slacum, 181 Md. 206, 29 A.2d 276 (1942).
N.H.—Perron v. Aranosian, 128 N.H. 92, 508 A.2d 1087 (1986).
N.J.—Hilton Intern. Co. v. Ginsburg, 207 N.J. Super. 1, 503 A.2d 879 (App. Div. 1985).
W. Va.—Baker v. Gaskins, 128 W. Va. 427, 36 S.E.2d 893 (1946).
2 Idaho—Ade v. Batten, 126 Idaho 114, 878 P.2d 813 (Ct. App. 1994).
Ind.—Carty v. Toro, 223 Ind. 1, 57 N.E.2d 434 (1944).
Mont.—Donovan v. Graff, 248 Mont. 21, 808 P.2d 491 (1991).
N.C.—Crissman v. Palmer, 225 N.C. 472, 35 S.E.2d 422 (1945).
R.I.—Jackson v. Medical Coaches, 734 A.2d 502 (R.I. 1999).
S.C.—Savage v. Cannon, 204 S.C. 473, 30 S.E.2d 70 (1944).
Only applies to misapprehension of fact
Ga.—Northeast Atlanta Sur. Co. v. State, 197 Ga. App. 399, 398 S.E.2d 435 (1990).
3 Cal.—Miller v. Lee, 52 Cal. App. 2d 10, 125 P.2d 627 (2d Dist. 1942).
4 § 418.
5 Cal.—Hopkins & Carley v. Gens, 200 Cal. App. 4th 1401, 135 Cal. Rptr. 3d 1 (2011).
Idaho—Ade v. Batten, 126 Idaho 114, 878 P.2d 813 (Ct. App. 1994).
6 Mich.—Gillispie v. Board of Tenant Affairs of Detroit Housing Com'n, 145 Mich. App. 424, 377 N.W.2d
864 (1985).
7 Mont.—Tschida v. Rowe, 2003 MT 192, 316 Mont. 503, 74 P.3d 1043 (2003).
8 Md.—Home Indem. Co. v. Killian, 94 Md. App. 205, 616 A.2d 906 (1992).
9 N.M.—Curliss v. B & C Auto Parts, 116 N.M. 668, 1993-NMCA-139, 866 P.2d 396 (Ct. App. 1993).
10 Ohio—State ex rel. Citizens for Responsible Taxation v. Scioto Cty. Bd. of Elections, 67 Ohio St. 3d 134,
616 N.E.2d 869 (1993).
S.D.—Payton v. Rogers, 66 S.D. 486, 285 N.W. 873 (1939).
Constitutes extraordinary circumstance

Alaska—Williams v. Crawford, 982 P.2d 250 (Alaska 1999).

11 Ky.—Rudy v. Ramey, 160 Ky. 842, 170 S.W. 179 (1914).
Mass.—Chavoor v. Lewis, 383 Mass. 801, 422 N.E.2d 1353 (1981).
12 Ga.—Noro-North Plaza Holdings, N.V. v. Rare Coins of Georgia, Inc., 196 Ga. App. 443, 395 S.E.2d 918
(1990).
13 N.M.—Curliss v. B & C Auto Parts, 116 N.M. 668, 1993-NMCA-139, 866 P.2d 396 (Ct. App. 1993).
Tenn.—Toney v. Mueller Co., 810 S.W.2d 145 (Tenn. 1991).
14 Mont.—In re Marriage of Castor, 249 Mont. 495, 817 P.2d 665 (1991).
N.M.—Curliss v. B & C Auto Parts, 116 N.M. 668, 1993-NMCA-139, 866 P.2d 396 (Ct. App. 1993).
Neglect, inadvertence, or forgetfulness
Ariz.—Daou v. Harris, 139 Ariz. 353, 678 P.2d 934 (1984).

Government Works.

§ 418. Mistake as ground for opening judgment—By counsel, 49 C.J.S. Judgments § 418
Judgments
§ 418. Mistake as ground for opening judgment—By counsel

A mistake by a party's counsel may be a ground for relief from a judgment, only if it is of
fact, not of law or relating to giving legal advice.
A mistake of the party's counsel may be a reason for opening a judgment, provided it was genuine
and reasonable, and a mistake of fact rather than of law,1 such as an erroneous impression that the
action had been discontinued2 or settled.3

§ 418. Mistake as ground for opening judgment—By counsel, 49 C.J.S. Judgments § 418
It is a general rule that a party may not be relieved from a judgment resulting from counsel's
ignorance or mistake with respect to the law, whether it concerns the client's rights or duties, the
legal effect of the facts in the case, or the rules of procedure.4
Erroneous advice.
While there is authority that a judgment may not be opened because the client received erroneous
advice from the client's attorney regarding the necessity of making a defense or the validity of that
defense,5 another court has granted relief on this ground.6
Footnotes
1 Cal.—Starkweather v. Minarets Mining Co., 5 Cal. App. 2d 501, 43 P.2d 321 (2d Dist. 1935).
Iowa—Rounds v. Butler, 208 Iowa 1391, 227 N.W. 417 (1929).
Ky.—Dow v. Pearce, 217 Ky. 202, 289 S.W. 245 (1926).
2 Ky.—Rosen v. Galizio, 184 Ky. 367, 212 S.W. 104 (1919).
3 R.I.—Fox v. Artesian Well & Supply Co., 34 R.I. 260, 83 A. 115 (1912).
4 Cal.—Bonestell v. Western Auto-Motive Finance Corporation, 69 Cal. App. 719, 232 P. 734 (3d Dist. 1924).
Okla.—Schneider v. Decker, 1930 OK 395, 144 Okla. 213, 291 P. 80 (1930).
Tenn.—Kilby v. Sivley, 745 S.W.2d 284 (Tenn. Ct. App. 1987).
Vt.—Margison v. Spriggs, 146 Vt. 116, 499 A.2d 756 (1985).
As to relief from a judgment because of errors of law, generally, see § 410.
Attorney's failure to comply with court rules
D.C.—W.H.H. Trice & Co. v. Faris, 829 A.2d 189 (D.C. 2003).
5 Cal.—Adams v. Alexander, 71 Cal. App. 2d 398, 162 P.2d 647 (4th Dist. 1945).
6 Okla.—Hatfield v. Lewis, 1925 OK 367, 110 Okla. 98, 236 P. 611 (1925).

Government Works.

§ 419. Surprise as ground for opening or vacating judgment, 49 C.J.S. Judgments § 419
Judgments
§ 419. Surprise as ground for opening or vacating judgment

Judgments usually may be opened or vacated on the ground that they were obtained through
surprise of the party injuriously affected.
Under some statutes or rules, judgments may be opened or vacated on the ground that they were
obtained through some surprise of the party injuriously affected,1 provided that the surprise could
not have been avoided by the exercise of due diligence.2
Surprise implies some event outside the defaulting party's control.3 The surprise is some condition
or situation in which a party is unexpectedly placed to the party's injury, without any fault or

§ 419. Surprise as ground for opening or vacating judgment, 49 C.J.S. Judgments § 419
negligence, which ordinary prudence could not have prevented.4 A party is not "surprised" merely
when one is alarmed by an action taken by the court, nor merely when that party has an erroneous
view of the law.5
Footnotes
1 Md.—Harvey v. Slacum, 181 Md. 206, 29 A.2d 276 (1942).
S.C.—Coleman v. Dunlap, 306 S.C. 491, 413 S.E.2d 15 (1992).
2 W. Va.—Baker v. Gaskins, 128 W. Va. 427, 36 S.E.2d 893 (1946).
3 Iowa—Dolezal v. Bockes, 602 N.W.2d 348 (Iowa 1999).
5 N.C.—Braun v. Grundman, 63 N.C. App. 387, 304 S.E.2d 636 (1983).

Government Works.

§ 420. Excusable neglect as ground for opening or..., 49 C.J.S. Judgments §...
Judgments
§ 420. Excusable neglect as ground for opening or vacating judgment

West's Key Number Digest, Judgment 363, 367
A party may be relieved against a judgment taken as a result of the person's excusable
neglect.
Under statutes or rules of civil procedure, a party may be relieved against a judgment taken as
a result of "excusable neglect," which means a lack of attention to the progress of the case, or
failure to attend the trial, which is excused or justified by the peculiar circumstances of the case.1
"Excusable neglect," allowing relief from a judgment, is that neglect that might have been the
act of a reasonably prudent person under the same circumstances.2 Excusable neglect is a more
rigorous standard than good cause, and requires a showing that the neglect was occasioned by some

extenuating circumstances of sufficient significance to render it excusable.3 However, the term

"excusable neglect" does not have a fixed legal meaning.4 Whether the facts found or admitted
constitute excusable neglect is a conclusion of law,5 which is left to the trial court's discretion.6
The movant's lack of procedural knowledge is not always necessary to show excusable neglect.7
Negligence may be excusable where it is caused by failure to receive notice of the action or the
trial,8 by reliance on assurances given by those on whom the party had a right to depend,9 or a
well-founded belief that the case would not be reached for trial as quickly as that happened.10 On
the other hand, a simple disregard of legal process is not excusable neglect.11
Unexplained neglect, standing alone, will not justify granting a motion to vacate.12 A party seeking
relief against a judgment on the ground of excusable negligence must negate the inference of a
lack of due diligence.13 A motion to vacate a judgment should not be granted where it is shown
that the party requesting equitable relief has been guilty of inexcusable neglect.14
Intent.
Inexcusable neglect does not necessarily mean that the party's disregard is intentional.15 However,
the greater the degree of the movant's willfulness, the less likely it is that the conduct will be
characterized as excusable neglect.16
Footnotes
1 Minn.—Pearce v. Lindstrom, 443 N.W.2d 857 (Minn. Ct. App. 1989).
N.C.—Hooks v. Neighbors, 211 N.C. 382, 190 S.E. 236 (1937).
S.D.—Peterson v. La Croix, 420 N.W.2d 18 (S.D. 1988).
2 Del.—Dishmon v. Fucci, 32 A.3d 338 (Del. 2011).
3 R.I.—Reyes v. Providence Place Group, L.L.C., 853 A.2d 1242 (R.I. 2004).
4 N.C.—Beauford County Lumber Co. v. Cottingham, 173 N.C. 323, 92 S.E. 9 (1917).
S.D.—Action Carrier, Inc. v. United Nat. Ins. Co., 2005 SD 57, 697 N.W.2d 387 (S.D. 2005).
5 N.C.—Thomas M. McInnis & Associates, Inc. v. Hall, 318 N.C. 421, 349 S.E.2d 552 (1986).
6 Ala.—McArdle v. Bromfield, 540 So. 2d 91 (Ala. Civ. App. 1989).

Colo.—Tyler v. Adams County Dept. of Social Services ex rel. Tyler, 697 P.2d 29 (Colo. 1985).
Wis.—Village of Big Bend v. Anderson, 103 Wis. 2d 403, 308 N.W.2d 887 (Ct. App. 1981).
Factors considered
In determining whether conduct constitutes excusable neglect, the factors considered include danger of
prejudice to the other party, the length of the delay and its potential impact on judicial proceedings, the reason
for the delay, including whether it was within the movant's reasonable control, and whether the movant acted
in good faith.

W. Va.—Delapp v. Delapp, 213 W. Va. 757, 584 S.E.2d 899 (2003).

7 Nev.—Stoecklein v. Johnson Elec., Inc., 109 Nev. 268, 849 P.2d 305 (1993) (holding modified on other
grounds by, Willard v. Berry-Hinckley Industries, 469 P.3d 176, 136 Nev. Adv. Op. No. 53 (Nev. 2020)).
8 Tenn.—Henry v. Goins, 104 S.W.3d 475 (Tenn. 2003).
Case not properly calendared
N.C.—Callaway v. Freeman, 71 N.C. App. 451, 322 S.E.2d 432 (1984).
9 S.C.—Thompson v. Hammond, 299 S.C. 116, 382 S.E.2d 900 (1989).
10 Ill.—Rapp v. Goerlitz, 314 Ill. App. 191, 40 N.E.2d 767 (1st Dist. 1942).
11 N.D.—State v. $33,000.00 U.S. Currency, 2008 ND 96, 748 N.W.2d 420 (N.D. 2008).
12 Ala.—Dillard v. Southern States Ford, Inc., 541 So. 2d 483 (Ala. 1989).
R.I.—Graham Architectural Products Corp. v. M & J Const. Co., Inc., 492 A.2d 150 (R.I. 1985).
13 Ariz.—City of Phoenix v. Geyler, 144 Ariz. 323, 697 P.2d 1073 (1985).
Cal.—Elms v. Elms, 72 Cal. App. 2d 508, 164 P.2d 936 (2d Dist. 1946).
Colo.—McElvaney v. Batley, 824 P.2d 73 (Colo. App. 1991).
Ga.—Young Const., Inc. v. Old Hickory House No. 3, Inc., 210 Ga. App. 559, 436 S.E.2d 581 (1993).
Ill.—Chovan v. Floor Covering Associates, Inc., 159 Ill. App. 3d 447, 111 Ill. Dec. 412, 512 N.E.2d 801
(3d Dist. 1987).
Ky.—Workingmen's Perpetual Bldg. & Loan Ass'n v. Stephens, 299 Ky. 177, 184 S.W.2d 575 (1944).
N.J.—Lawrence v. Matusewski, 210 N.J. Super. 268, 509 A.2d 327 (Law Div. 1986).
N.Y.—Winter v. New York Life Ins. Co., 260 A.D. 676, 23 N.Y.S.2d 759 (1st Dep't 1940).
Tex.—Fowler v. Roden, 129 Tex. 599, 105 S.W.2d 187 (Comm'n App. 1937).
Wis.—In re Paternity of M.T.H., 140 Wis. 2d 843, 412 N.W.2d 164 (Ct. App. 1987).
Failure to respond to summons
N.C.—Grant v. Cox, 106 N.C. App. 122, 415 S.E.2d 378 (1992).
Considerable burden
A party seeking relief from a judgment based on excusable neglect bears the considerable burden of showing
that the mistake was indeed excusable, and not due simply to one's own carelessness.
Mass.—Gath v. M/A-Com, Inc., 440 Mass. 482, 802 N.E.2d 521 (2003).
14 Cal.—In re Marriage of Stevenot, 154 Cal. App. 3d 1051, 202 Cal. Rptr. 116 (1st Dist. 1984).
15 Ohio—Mid-America Acceptance Co. v. Lightle, 63 Ohio App. 3d 590, 579 N.E.2d 721 (10th Dist. Franklin
County 1989).
16 Ohio—Mid-America Acceptance Co. v. Lightle, 63 Ohio App. 3d 590, 579 N.E.2d 721 (10th Dist. Franklin
County 1989).

Government Works.

Judgments
§ 421. Excusable neglect as ground for opening or vacating judgment—Of counsel

A trial court may, in its discretion, open a judgment rendered against a party as a result of
an attorney's excusable neglect.
In a proper case, a trial court may, in its discretion, open a judgment resulting from the attorney's
excusable neglect.1 The party must possess a reasonable defense on the merits, have a reasonable
excuse for the failure or neglect involved, have acted with due diligence after notice of the entry
of judgment, and show that substantial prejudice will not result to the other party.2

Relief from a final judgment is available only if the client can affirmatively show that the attorney's
negligence was excusable,3 because the attorney's negligence is imputable to the client.4 The
negligence of an attorney may be excusable, when it is attributable to an honest mistake, an
accident, or any cause that is compatible with proper diligence on the attorney's part.5 The court
inquires whether a reasonably prudent person under the same or similar circumstances might
have made the same error,6 or more particularly whether the attorney's conduct is consistent
with the manner in which a reasonably prudent attorney would have acted under similar
circumstances.7 While relief from a judgment may be proper when the attorney's personal problems
or psychological disorders caused counsel to neglect a case,8 an attorney's bare claim of being
"overwhelmed and disorganized" does not establish excusable neglect.9
Generally, relief from a judgment when a party hires one's own lawyer will not be granted on
the grounds of incompetent or ineffective counsel,10 although there is some authority that relief
may be granted on the basis of counsel's ignorance or incompetency.11 The rule that relief will not
be granted for incompetence applies not only where the negligence of the attorney consists of a
failure to enter an appearance or answer in a timely manner,12 but also where the attorney failed to
meet the standard of diligence required during litigation.13 Conduct falling below the professional
standard of care, such as a failure to object or to advance an argument, is not excusable.14
A narrow exception to the rule imputing an attorney's neglect to a client applies when an attorney
abandons a client without notice.15 The mere fact of a misunderstanding between a party and the
party's attorney is insufficient to deprive the other party of the judgment.16
Client not negligent.
Relief from a judgment may be allowed for an attorney's negligence where the client was not
personally negligent.17 The client must be free from fault, and the attorney's negligence is not
excusable, if the client wholly neglected the case.18
Clerical or secretarial error.
Where a failure to act is the result of clerical or secretarial error, excusable neglect is established.19
Gross negligence.

The degree of negligence attributable to the client is only one factor for a court to consider
in determining whether to grant relief from a judgment on the ground of the attorney's gross
negligence,20 and there is also authority that counsel's gross negligence will not be imputed to the
client, and may be considered excusable neglect entitling the client to relief from the judgment.21 A
party moving for relief from a final judgment on the ground that the attorney's conduct was grossly
negligent has the burden of demonstrating that the client was diligent in pursuing all claims, but
was thwarted by the attorney's gross negligence.22
Footnotes
1 Mass.—Lovell v. Lovell, 276 Mass. 10, 176 N.E. 210 (1931).
2 Minn.—State v. $14,000 Dollars in Various Denominations of U.S. Currency, 345 N.W.2d 277, 38 U.C.C.
Rep. Serv. 1007 (Minn. Ct. App. 1984).
Belief that statute of limitations had run
Plaintiff's counsel's failure to discover that the statute of limitations had not run because of an intervening
weekend and court holiday was an excusable mistake entitling the plaintiff to relief from a judgment entered
on statute of limitations grounds, since a failure to grant relief would result in the dismissal of a timely filed
case as untimely, and the defendant was not prejudiced in that other plaintiffs' claims against him would
have continued anyway.
Cal.—Mink v. Superior Court, 2 Cal. App. 4th 1338, 4 Cal. Rptr. 2d 195 (4th Dist. 1992).
3 Cal.—Zamora v. Clayborn Contracting Group, Inc., 28 Cal. 4th 249, 121 Cal. Rptr. 2d 187, 47 P.3d 1056
(2002).
S.D.—Gold Pan Partners, Inc. v. Madsen, 469 N.W.2d 387 (S.D. 1991).
4 Alaska—Hartland v. Hartland, 777 P.2d 636 (Alaska 1989).
Cal.—Zamora v. Clayborn Contracting Group, Inc., 28 Cal. 4th 249, 121 Cal. Rptr. 2d 187, 47 P.3d 1056
(2002).
Idaho—Esser Elec. v. Lost River Ballistics Technologies, Inc., 145 Idaho 912, 188 P.3d 854 (2008).
Ill.—Mt. Zion State Bank & Trust v. Weaver, 226 Ill. App. 3d 783, 168 Ill. Dec. 583, 589 N.E.2d 983 (4th
Dist. 1992).
Minn.—Soderling v. Hickok, 409 N.W.2d 73 (Minn. Ct. App. 1987).
Mo.—Cotleur v. Danziger, 870 S.W.2d 234 (Mo. 1994).
Ohio—Whitt v. Bennett, 82 Ohio App. 3d 792, 613 N.E.2d 667 (2d Dist. Montgomery County 1992).
Okla.—American Bank of Commerce v. Chavis, 1982 OK 66, 651 P.2d 1321 (Okla. 1982).
S.C.—Mitchell Supply Co., Inc. v. Gaffney, 297 S.C. 160, 375 S.E.2d 321 (Ct. App. 1988).
5 Ark.—Metropolitan Life Ins. Co. v. Duty, 197 Ark. 1118, 126 S.W.2d 921 (1939).
(2002).
7 Utah—Menzies v. Galetka, 2006 UT 81, 150 P.3d 480 (Utah 2006).
8 Wyo.—Orosco v. Schabron, 9 P.3d 264 (Wyo. 2000).

As to relief given on account of counsel's absence or sickness, see § 422.
9 Cal.—Huh v. Wang, 158 Cal. App. 4th 1406, 71 Cal. Rptr. 3d 65 (6th Dist. 2007), as modified on other
grounds, (Jan. 16, 2008).
10 Ala.—Sidwell v. Wooten, 473 So. 2d 1036 (Ala. 1985).
Miss.—Stringfellow v. Stringfellow, 451 So. 2d 219 (Miss. 1984).
11 Ariz.—Central Bank of Willcox v. Willcox-Pima Overland Co., 21 Ariz. 314, 188 P. 133 (1920).
As to whether this is a basis for relief from a judgment under the catch-all provision, see § 428.

A.L.R. Library
Incompetence of counsel as ground for relief from state court civil judgment, 64 A.L.R.4th 323.
12 Cal.—Debbie S. v. Ray, 16 Cal. App. 4th 193, 19 Cal. Rptr. 2d 814 (2d Dist. 1993).
Ky.—Childers v. Potter, 291 Ky. 478, 165 S.W.2d 3 (1942).
S.C.—Greenville Income Partners v. Holman, 308 S.C. 105, 417 S.E.2d 107 (Ct. App. 1992).
Tex.—Collins v. National Bank of Commerce of San Antonio, 154 S.W.2d 296 (Tex. Civ. App. San Antonio
1941), writ refused.
13 Minn.—Slatoski v. Jendro, 134 Minn. 328, 159 N.W. 752 (1916).
(2002).
15 Mo.—Cotleur v. Danziger, 870 S.W.2d 234 (Mo. 1994).
16 Ga.—J. S. Schofield's Sons Co. v. Vaughn, 40 Ga. App. 568, 150 S.E. 569 (1929).
17 Mass.—Borst v. Young, 302 Mass. 124, 18 N.E.2d 544 (1939).

S.D.—Gold Pan Partners, Inc. v. Madsen, 469 N.W.2d 387 (S.D. 1991).
18 N.C.—Allen v. McPherson, 168 N.C. 435, 84 S.E. 766 (1915).
Client did not have contact with attorney
Me.—Moulton v. Brown, 627 A.2d 521 (Me. 1993).
19 Fla.—Noel v. James B. Nutter & Company, 232 So. 3d 1112 (Fla. 3d DCA 2017).
20 Colo.—Buckmiller v. Safeway Stores, Inc., 727 P.2d 1112 (Colo. 1986).
21 Client not informed of attorney's suspension

Colo.—Valley Bank of Frederick v. Rowe, 851 P.2d 267 (Colo. App. 1993).
22 N.M.—Meiboom v. Watson, 2000-NMSC-004, 128 N.M. 536, 994 P.2d 1154 (2000), as corrected, (Feb.
15, 2000).

Government Works.

§ 422. Casualty or misfortune as ground for opening judgment, 49 C.J.S. Judgments § 422
Judgments
§ 422. Casualty or misfortune as ground for opening judgment

West's Key Number Digest, Judgment 363, 365, 366, 371
Under some statutes or rules, an adverse judgment may be opened on the ground that a
party was prevented by unavoidable casualty or misfortune from properly prosecuting or
defending the action.
Under some statutes or rules, a party may have a judgment opened on the ground that the movant
was prevented by unavoidable casualty or misfortune from properly prosecuting or defending the
action in which it was rendered.1 The "unavoidable casualty or misfortune" for which a judgment
may be opened or vacated is not negligence,2 but an accident or mishap arising from causes beyond

the party's control, and against which the party could not have guarded in the exercise of due
foresight and diligence.3
Absence of party.
The mere fact that a party was absent from the trial is not cause for relief from the judgment, where
that absence is not excused or shown to have been unavoidable.4 However, it is a good excuse if
the movant shows that the absence was due to a cause beyond one's control,5 provided reasonable
diligence and foresight was exercised to anticipate and avoid, or to overcome, the obstacles.6
Absence of counsel.
The mere absence of one's attorney at the time of the trial is not cause for relief from a judgment7
unless it is shown that the client suffered injustice and injury.8 The view has also been taken that
the attorney should have applied for a continuance.9
Illness of party or relative.
If a party is prevented by sickness from preparing one's case or attending the trial, and the
circumstances are such that the party's personal attention and presence are necessary to protect
the party's rights in court, a judgment may be set aside on the ground of "casualty or misfortune,"
or of "excusable neglect."10 It is otherwise, however, where the party's interests were, or could
have been, adequately protected by an attorney or agent without the party's personal presence or
attention.11
The illness of a member of a party's family, or of any other relative, while it may be a ground for
a continuance, is generally not cause for relief from the judgment.12
Illness or death of counsel or relative.
Relief from a judgment has been given in cases where an attorney failed to prosecute a case due
to alcoholism13 or psychological disorders.14 The same rule applies in case of the illness or death
of a member of the attorney's family, or a near relative, resulting in counsel withdrawing attention
from professional business, and leaving the client without legal aid and without the opportunity to
retain other counsel.15 The death of one's attorney is an "unavoidable casualty," and thus a ground
for vacating a judgment.16

Footnotes
1 Ark.—Kersh Lake Drainage Dist. v. Johnson, 203 Ark. 315, 157 S.W.2d 39 (1941).
Neb.—Emry v. American Honda Motor Co., Inc., 214 Neb. 435, 334 N.W.2d 786 (1983).
Okla.—Tedford v. Divine, 1987 OK 18, 734 P.2d 283 (Okla. 1987).
2 Iowa—Home Federal Sav. and Loan Ass'n of Harlan v. Robinson, 464 N.W.2d 894 (Iowa Ct. App. 1990).
3 Ark.—Wilder v. Harris, 205 Ark. 341, 168 S.W.2d 804 (1943).

Iowa—Dolezal v. Bockes, 602 N.W.2d 348 (Iowa 1999).
Okla.—Walker v. Gulf Pipe Line Co., 1924 OK 515, 102 Okla. 7, 226 P. 1046 (1924).
4 Iowa—Hagar v. Galles, 244 N.W. 700 (Iowa 1932).
Tex.—Kurtz v. Carr, 261 S.W. 479 (Tex. Civ. App. San Antonio 1924).
Misunderstanding with counsel
A party's failure to appear as a consequence of a misunderstanding with counsel does not afford a reason
for granting a motion for relief from the judgment.
Ga.—Arkwright v. Arkwright, 284 Ga. 545, 668 S.E.2d 709 (2008).
5 Or.—Capalija v. Kulish, 101 Or. 666, 201 P. 545 (1921).
6 Tex.—Miller v. First State Bank & Trust Co. of Santa Anna, 184 S.W. 614 (Tex. Civ. App. Austin 1915).
7 Ala.—Lee v. Tolleson, 502 So. 2d 354, 64 A.L.R.4th 315 (Ala. 1987).

Cal.—Startzman v. Los Banos Cotton Gins, 82 Cal. App. 624, 256 P. 220 (3d Dist. 1927).
Okla.—Brockman v. Penn Mut. Life Ins. Co., 1937 OK 62, 179 Okla. 98, 64 P.2d 1208 (1937).
S.C.—Hartford Fire Ins. Co. v. Sightler, 131 S.C. 241, 127 S.E. 13 (1925).
8 Cal.—Bixby v. Hotchkis, 72 Cal. App. 2d 368, 164 P.2d 808 (2d Dist. 1945).
9 Wyo.—Luman v. Hill, 36 Wyo. 48, 252 P. 1019 (1927).
10 Iowa—Home Federal Sav. and Loan Ass'n of Harlan v. Robinson, 464 N.W.2d 894 (Iowa Ct. App. 1990).
Ky.—Baker v. Owensboro Savings Bank & Trust Co.'s Receiver, 140 Ky. 121, 130 S.W. 969 (1910).
11 Tex.—Woytek v. King, 218 S.W. 1081 (Tex. Civ. App. Austin 1920).
12 Kan.—Gooden v. Lewis, 101 Kan. 482, 167 P. 1133 (1917).
13 Ill.—Kalan v. Palast, 220 Ill. App. 3d 805, 163 Ill. Dec. 224, 581 N.E.2d 175 (1st Dist. 1991).
14 Wyo.—Sanford v. Arjay Oil Co., 686 P.2d 566 (Wyo. 1984).
15 Iowa—Norman v. Iowa Cent. Ry. Co., 149 Iowa 246, 128 N.W. 349 (1910).
16 Ark.—Columbia County v. England, 151 Ark. 465, 236 S.W. 625 (1922).

Government Works.

§ 423. Catch-all provision justifying opening or vacating..., 49 C.J.S. Judgments §...
Judgments
f. Other Reasons Justifying Relief; Catch-All Provision
§ 423. Catch-all provision justifying opening or vacating judgment, generally

Statutes and rules of civil procedure that specifically enumerate grounds for relief from a
judgment also generally provide that the court may relieve a party from a judgment for any
other reason justifying relief.
Statutes and rules of civil procedure that specifically enumerate grounds for relief from judgment
also generally provide that the court may relieve a party from a judgment for any other reason
justifying relief.1 The "any other reason" provision, also known as the "catch-all" provision,2 is
an extreme remedy3 and relief is infrequently granted.4 The rule must be interpreted narrowly to
avoid undercutting the finality of judgments,5 and thus relief is granted only in extraordinary6 or

exceptional7 circumstances when a party can show the court sufficient equitable grounds to entitle
the party to relief.8 This includes cases of extreme hardship or injustice,9 or of overwhelming
importance.10 The test for whether a judgment should be opened under the catch-all provision is
two-pronged, in that extraordinary circumstances must exist, and there must be a showing that
justice demands that relief be granted.11 The provision should be used only when circumstances
are such that the sanctity of the final judgment is outweighed by the requirement that justice be
done in light of all of the facts.12 It has been somewhat differently stated that while the rule must
be interpreted liberally to prevent hardship or injustice, the interests of finality necessarily limit
when relief is available.13 Therefore, courts should not interpret the provision so broadly as to
erode the concept of finality, but not so narrowly that truly deserving claimants are denied relief,
and should seek to achieve a balance between the competing values of finality and fairness.14
When considering a motion for relief from judgment under the catch-all provision, a court
must consider all of the attendant circumstances, to determine whether that relief is equitable.15
Equitable considerations include (1) whether the movant has a substantial interest in the matter
at issue, (2) whether the movant had an excusable reason for its untimely response, (3) whether
the movant will suffer significant loss if a default judgment is not set aside, and (4) whether the
nonmovant will suffer only minimal prejudice if the case is reinstated.16 A party is entitled to relief
from a judgment only where the other party's substantial rights will not be detrimentally affected.17
Footnotes
1 Mont.—Little Big Warm Ranch, LLC v. Doll, 2020 MT 198, 400 Mont. 536, 469 P.3d 689 (2020).
Wyo.—Webb v. State ex rel. Department of Family Services, Child Support Enforcement Division, 2020
WY 111, 471 P.3d 289 (Wyo. 2020).
2 Ohio—Waterfall Victoria Master Fund 2008 1 v. Rittenhouse, 2018-Ohio-1791, 111 N.E.3d 883 (Ohio Ct.
App. 5th Dist. Delaware County 2018), appeal not allowed, 153 Ohio St. 3d 1468, 2018-Ohio-3450, 106
N.E.3d 66 (2018).
Utah—Peck v. Peck, 2020 UT App 14, 459 P.3d 1033 (Utah Ct. App. 2020).
3 Ala.—Kyser-Taylor v. State ex rel. Galanos, 628 So. 2d 747 (Ala. Civ. App. 1993).
4 Idaho—Ciccarello v. Davies, 166 Idaho 153, 456 P.3d 519 (2019).
5 Colo.—People v. Caro, 753 P.2d 196 (Colo. 1988).

Tenn.—Federated Ins. Co. v. Lethcoe, 18 S.W.3d 621 (Tenn. 2000).
6 Ind.—Centennial Park, LLC v. Highland Park Estates, LLC, 151 N.E.3d 1230 (Ind. Ct. App. 2020).
Mont.—Little Big Warm Ranch, LLC v. Doll, 2020 MT 198, 400 Mont. 536, 469 P.3d 689 (2020).
Ohio—Hussain v. Hussain, 2020-Ohio-531, 152 N.E.3d 365 (Ohio Ct. App. 12th Dist. Butler County 2020).
Wash.—Winter v. Department of Social and Health Services on behalf of Winter, 12 Wash. App. 2d 815,
Missed opportunity to impeach witness not extraordinary

Ct. App. 1987).
7 Ind.—Centennial Park, LLC v. Highland Park Estates, LLC, 151 N.E.3d 1230 (Ind. Ct. App. 2020).
N.D.—Kautzman v. Doll, 2018 ND 23, 905 N.W.2d 744 (N.D. 2018).
Tenn.—Hussey v. Woods, 538 S.W.3d 476 (Tenn. 2017).
Most unusual circumstances
Ky.—Asset Acceptance, LLC v. Moberly, 241 S.W.3d 329 (Ky. 2007).
Sparingly invoked
Relief from a judgment under the "catch-all" provision is meant to be the exception rather than the rule; it
should be sparingly invoked and used only in unusual and exceptional circumstances.
Utah—Menzies v. Galetka, 2006 UT 81, 150 P.3d 480 (Utah 2006).
8 Ala.—Patterson v. Hays, 623 So. 2d 1142 (Ala. 1993).
Reservoir of equitable power
N.D.—Olander Contracting Co. v. Gail Wachter Investments, 2003 ND 100, 663 N.W.2d 204 (N.D. 2003).
9 Ala.—SAI Montgomery BCH, LLC v. Williams, 295 So. 3d 1048 (Ala. 2019).
R.I.—McLaughlin v. Zoning Board of Review of Town of Tiverton, 186 A.3d 597 (R.I. 2018).
Miscarriage of justice
Ark.—Ingram v. Wirt, 314 Ark. 553, 869 S.W.2d 685 (1993).
Whenever appropriate to accomplish justice
Haw.—Buscher v. Boning, 114 Haw. 202, 159 P.3d 814 (2007).
Mass.—Sahin v. Sahin, 435 Mass. 396, 758 N.E.2d 132 (2001).
Manifestly unjust
N.D.—Kopp v. Kopp, 2001 ND 41, 622 N.W.2d 726 (N.D. 2001)
Safety valve
A rule permitting a court to set aside a judgment for any other reason justifying such relief provides the
ultimate safety valve to avoid enforcement, by vacating a judgment to accomplish justice.
N.D.—Knutson v. Knutson, 2002 ND 29, 639 N.W.2d 495 (N.D. 2002).
10 Tenn.—Federated Ins. Co. v. Lethcoe, 18 S.W.3d 621 (Tenn. 2000).
11 N.C.—Bullock v. Tucker, 262 N.C. App. 511, 822 S.E.2d 654 (2018).
12 Wis.—Nelson v. Taff, 175 Wis. 2d 178, 499 N.W.2d 685 (Ct. App. 1993).
13 Vt.—Riehle v. Tudhope, 171 Vt. 626, 765 A.2d 885 (2000).
16 Ind.—First Chicago Insurance Company v. Collins, 141 N.E.3d 54 (Ind. Ct. App. 2020).
17 Mich.—Zeer v. Zeer, 179 Mich. App. 622, 446 N.W.2d 328 (1989).

Government Works.

§ 424. Relationship of catch-all ground for opening or..., 49 C.J.S. Judgments §...
Judgments
§ 424. Relationship of catch-all ground for

opening or vacating judgment to other grounds

A provision allowing relief from a judgment for any other reason justifying relief is mutually
exclusive of the specifically enumerated grounds.
A provision allowing relief from a judgment for any other reason justifying relief is mutually
exclusive of the specifically enumerated grounds; a party may not obtain relief under that provision
if it would have been available under the specific provisions.1 A party may not seek relief from
judgment under the "any other reason" provision as a means of escaping the time limits imposed for
relief from a judgment on the basis of other grounds specified in the statute or rule.2 The provision

§ 424. Relationship of catch-all ground for opening or..., 49 C.J.S. Judgments §...
may also not serve as an alternative to the rule on newly discovered evidence3 or an escape hatch
when new evidence does not satisfy the requirements of that provision.4
Relief under the catch-all provision is appropriate only in extraordinary circumstances that go
beyond those covered by the preceding subsections of the rule.5 It has also been said that relief may
be appropriate under that provision when there is "something more" than one of the enumerated
grounds.6 Accordingly, the standards of the catch-all rule are more demanding than under other
grounds.7
Footnotes
1 Alaska—Powell v. State, 460 P.3d 787 (Alaska Ct. App. 2020).
Ohio—Milosavljevic v. Milosavljevic, 2019-Ohio-3966, 145 N.E.3d 1054 (Ohio Ct. App. 7th Dist. Monroe
County 2019), appeal not allowed, 157 Ohio St. 3d 1563, 2020-Ohio-313, 138 N.E.3d 1155 (2020).
Utah—Peck v. Peck, 2020 UT App 14, 459 P.3d 1033 (Utah Ct. App. 2020).
Vt.—Penland v. Warren, 208 Vt. 15, 2018 VT 70, 194 A.3d 755 (2018).
Because it is a residuary clause
Utah—Menzies v. Galetka, 2006 UT 81, 150 P.3d 480 (Utah 2006).
Otherwise encompassed by coram nobis
A "reason of an extraordinary nature" justifying relief from a judgment under a catch-all provision
encompasses those grounds that would justify relief pursuant to a writ of coram nobis that are not otherwise
specified in the rule.
Ky.—Com. v. Spaulding, 991 S.W.2d 651 (Ky. 1999), as amended on other grounds, (June 28, 1999).
Coram nobis is discussed in §§ 479 et seq.
2 § 439.
3 Ohio—State ex rel. Richard v. Cuyahoga Cty. Commrs., 89 Ohio St. 3d 205, 2000-Ohio-135, 729 N.E.2d
755 (2000).
4 Miss.—Mitchell v. Nelson, 830 So. 2d 635 (Miss. 2002).
N.M.—Fowler-Propst v. Dattilo, 111 N.M. 573, 1991-NMCA-030, 807 P.2d 757 (Ct. App. 1991).
Relief on the basis of newly discovered evidence is discussed in §§ 407 to 409.
5 Alaska—Atcherian v. State, Dept. of Revenue, Child Support Enforcement Div., 14 P.3d 970 (Alaska 2000).
Mass.—Owens v. Mukendi, 448 Mass. 66, 858 N.E.2d 734 (2006).
Mont.—Essex Ins. Co. v. Moose's Saloon, Inc., 2007 MT 202, 338 Mont. 423, 166 P.3d 451 (2007).
6 Mass.—Owens v. Mukendi, 448 Mass. 66, 858 N.E.2d 734 (2006).
7 Tenn.—NCNB Nat. Bank of North Carolina v. Thrailkill, 856 S.W.2d 150 (Tenn. Ct. App. 1993).

Government Works.

§ 425. Effect of movant's fault in seeking opening or..., 49 C.J.S. Judgments §...
Judgments
§ 425. Effect of movant's fault in seeking opening

or vacating judgment under catch-all provision

A party seeking relief from a judgment under the catch-all provision may not be at fault,
and the rule does not help litigants who did not take advantage of available steps in the prior
litigation.
It has been said that a movant must be blameless to obtain relief from a judgment under the
provision for relief from a judgment for any other reason justifying relief,1 and a party who violates
court rules or orders is not entitled to relief under it.2 The court ruling on a motion under the catch-
all clause must consider the efforts, equities, and interests of the affected parties.3

§ 425. Effect of movant's fault in seeking opening or..., 49 C.J.S. Judgments §...
The rule permitting relief from a judgment for any reason of an extraordinary nature is limited
to extraordinary circumstances beyond the movant's control that effectively prevented the movant
from responding to the litigation in a timely manner.4 The movant must show that something
prevented a full presentation of the case or an accurate determination on the merits, and that, for
reasons of fairness and equity, redress is justified.5 The broad power under the provision is not
granted for the purpose of relieving a party from free, calculated, and deliberate choices;6 a party
remains under a duty to take the legal steps necessary to protect the party's own interests.7 Relief
should not be granted to a party who has failed to do everything reasonably within one's power
to achieve a favorable result before the judgment became final.8 It is proper to deny relief under
the catch-all provision to a claimant advancing an entirely new legal argument that was apparently
overlooked during the course of the litigation.9
Footnotes
1 Mont.—Ford Motor Credit Co. v. Wellnitz, 2008 MT 314, 346 Mont. 61, 194 P.3d 630 (2008).
2 Me.—Ezell v. Lawless, 2008 ME 139, 955 A.2d 202 (Me. 2008).
3 Me.—Ezell v. Lawless, 2008 ME 139, 955 A.2d 202 (Me. 2008).
4 Ky.—Asset Acceptance, LLC v. Moberly, 241 S.W.3d 329 (Ky. 2007).
5 Mont.—In re Marriage of Markegard, 2006 MT 111, 332 Mont. 187, 136 P.3d 532 (2006) (overruled on
other grounds by, In re Marriage of Funk, 2012 MT 14, 363 Mont. 352, 270 P.3d 39 (2012)).
6 Ala.—Ex parte Price, 264 So. 3d 35 (Ala. 2018).
N.D.—Hustle Proof Corporation v. Matthews, 2020 ND 32, 938 N.W.2d 399 (N.D. 2020).
7 Ala.—Ex parte Price, 264 So. 3d 35 (Ala. 2018).
N.D.—State v. White, 2018 ND 58, 907 N.W.2d 765 (N.D. 2018).
As to the motion not being a substitute for an appeal, a motion for a new trial, or the like, see § 430.
8 Ala.—Osborn v. Roche, 813 So. 2d 811 (Ala. 2001).
N.M.—Deerman v. Board of County Com'rs of County of Dona Ana, 116 N.M. 501, 1993-NMCA-123, 864
P.2d 317 (Ct. App. 1993).
9 Mass.—M.B. Claff, Inc. v. Massachusetts Bay Transp. Authority, 441 Mass. 596, 808 N.E.2d 238 (2004).

Government Works.

§ 426. Change in law as ground for opening or vacating..., 49 C.J.S. Judgments §...
Judgments
§ 426. Change in law as ground for opening or

vacating judgment under catch-all provision

A change in law is generally not sufficient to justify relief under the "any other reason"
provision, considering the interest in finality.
A change in law is generally not alone sufficient to justify relief from a judgment under an
"any other reason" provision.1 New developments in case law generally do not qualify as an
extraordinary circumstance for this purpose, considering the need to prevent endless relitigation of
settled cases.2 It has also been said that the provision is appropriately used to address intervening
changes in the law only in unique and extraordinary circumstances.3

§ 426. Change in law as ground for opening or vacating..., 49 C.J.S. Judgments §...
Footnotes
1 Wis.—Tetra Tech EC, Inc. v. Wisconsin Department of Revenue, 2018 WI 75, 382 Wis. 2d 496, 914 N.W.2d
21 (2018).
As to the effect of a change in the law, generally, see § 398.
Change in statute of limitations
The subsequent lengthening of the applicable statute of limitations was not an "extraordinary circumstance"
that required vacation of an unappealed judgment.
Minn.—Simington v. Minnesota Veterans Home, 464 N.W.2d 529 (Minn. Ct. App. 1990).
2 N.J.—A.B. v. S.E.W., 175 N.J. 588, 818 A.2d 1270 (2003).

Government Works.

§ 427. Application of catch-all provision allowing opening..., 49 C.J.S. Judgments §...
Judgments
§ 427. Application of catch-all provision allowing

opening or vacating judgment to particular matters

Provisions allowing relief from a judgment for any other reason justifying relief have been
applied in cases involving claimed lack of jurisdiction, errors on the face of the judgment,
and lack of notice.
A provision for relief from a judgment for any other reason justifying relief permits an order to
be set aside for lack of jurisdiction.1 It also provides relief from a judgment erroneous on its face
entered in violation of law,2 although it has been held that the provision does not include relief
from errors of law or erroneous judgments.3 Additionally, substantial grounds exist for a court to

grant relief from a judgment under the catch-all provision if the moving party establishes a fraud
upon the court.4
The fact that a party did not receive required written notice of the entry of judgment and was
misinformed, when asking the clerk, that a judgment had not been entered constituted exceptional
circumstances warranting relief under the catch-all rule, so as to allow the party to present
otherwise untimely posttrial motions to the court.5 A party's inability to obtain a transcript for
appeal may be a proper basis for vacating a judgment only where that party has diligently pursued
one's rights.6
A landowner's claim that the statutory interest rate on an eminent domain judgment failed to satisfy
the constitutional requirement of just compensation could not be raised pursuant to the catch-all
provision, where the motion did not identify an extraordinary circumstance warranting relief.7
Footnotes
1 Mont.—In re Marriage of Oltersdorf, 256 Mont. 96, 844 P.2d 778 (1992).
As to invalidity of a judgment for lack of jurisdiction as a ground for vacating a judgment, see § 399.
Competency challenge waived
If a judgment is rendered by a court lacking competency, in the sense that statutory prerequisites to the
exercise of jurisdiction have not been met, and the competency challenge has been waived, the catch-all
provision may provide an avenue for relief in an extraordinary case.
Wis.—Village of Trempealeau v. Mikrut, 2004 WI 79, 273 Wis. 2d 76, 681 N.W.2d 190 (2004).
2 Kan.—Matter of Estate of Newland, 240 Kan. 249, 730 P.2d 351 (1986).
As to whether erroneous judgments may be vacated, see § 410.
3 N.C.—Lesh v. Lesh, 257 N.C. App. 471, 809 S.E.2d 890 (2018).
4 Ohio—Roubanes Luke v. Roubanes, 2018-Ohio-1065, 109 N.E.3d 671 (Ohio Ct. App. 10th Dist. Franklin
County 2018).
5 Miss.—Hartford Underwriters Ins. Co. v. Williams, 936 So. 2d 888 (Miss. 2006).
6 Me.—Putnam v. Albee, 1999 ME 44, 726 A.2d 217 (Me. 1999).
7 Mass.—M.B. Claff, Inc. v. Massachusetts Bay Transp. Authority, 441 Mass. 596, 808 N.E.2d 238 (2004).

Government Works.

Judgments
§ 428. Application of catch-all provision allowing opening or

vacating judgment to particular matters—Attorney's misconduct

The catch-all provision has been applied in cases involving neglect by an attorney, or an
attorney settling a matter without the client's consent.
The catch-all provision has been applied in cases involving neglect1 or gross negligence2 by
an attorney. That provision is sufficiently broad to permit a court to set aside a judgment for
ineffective assistance of counsel, where the attorney blatantly disregarded professional obligations
and subverted the client's interests, or the lawyer's performance was grossly negligent and therefore
not excusable.3

A party who demonstrates that the party's attorney did not have the authority to settle or
compromise a claim or defense may seek to vacate the judgment pursuant to the catch-all
provision.4
Footnotes
1 Mont.—Skogen v. Murray, 2007 MT 104, 337 Mont. 139, 157 P.3d 1143 (2007).
As to excusable neglect by an attorney, see § 421.
2 Utah—Peck v. Peck, 2020 UT App 14, 459 P.3d 1033 (Utah Ct. App. 2020).

Showing required
A party alleging that an attorney's conduct was grossly negligent such that relief from a final judgment
is warranted, must demonstrate exceptional circumstances by showing that (1) the attorney's conduct was
grossly negligent; (2) the party seeking relief acted in a diligent and conscientious manner in pursuing the
claim; (3) the moving party had a legitimate claim or defense; and (4) there is little, if any, likelihood of
prejudice to the opponent should the judgment be vacated.
N.M.—Meiboom v. Watson, 2000-NMSC-004, 128 N.M. 536, 994 P.2d 1154 (2000), as corrected, (Feb.
15, 2000).
Speculative allegation
Litigants' speculative allegations of attorney malpractice based on their attorney's representation of
the opposing party's brother in a previous divorce action did not constitute the type of extraordinary
circumstances that would allow the court to reopen an old civil judgment using the catch-all provision.
Vt.—Letourneau v. Hickey, 174 Vt. 481, 807 A.2d 437 (2002).
A.L.R. Library
Incompetence of counsel as ground for relief from state court civil judgment, 64 A.L.R.4th 323.
4 Ohio—Sperry v. Hlutke, 19 Ohio App. 3d 156, 483 N.E.2d 870 (8th Dist. Cuyahoga County 1984).

Government Works.

§ 429. Defenses to motion to open or vacate judgment, generally, 49 C.J.S. Judgments §...
Judgments
3. Defenses to Relief
§ 429. Defenses to motion to open or vacate judgment, generally

The sufficiency of particular matters as defenses to a motion to open or vacate a judgment has been considered.
The sufficiency of particular matters as defenses to a motion to open or vacate a judgment has been considered with respect to
such matters as the expiration of the statutory time limit or laches,1 and fraud on the court.2
Res judicata or claim preclusion is not available as a defense to a motion to set aside or an action to annul the judgment at issue.3
Footnotes
1 §§ 435 et seq.
2 N.Y.—Automotive Rentals, Inc. v. Perakis, 170 A.D.2d 555, 566 N.Y.S.2d 331 (2d Dep't 1991).
3 Alaska—Dixon v. Pouncy, 979 P.2d 520 (Alaska 1999).
La.—Bonaventure v. Pourciau, 577 So. 2d 742 (La. Ct. App. 1st Cir. 1991).
As to res judicata, generally, see §§ 912 et seq.
As to whether a decision on a prior motion for relief from a judgment is res judicata, see § 472.

§ 429. Defenses to motion to open or vacate judgment, generally, 49 C.J.S. Judgments §...

Works.

§ 430. Availability of other remedies as defense to motion..., 49 C.J.S. Judgments §...
Judgments
§ 430. Availability of other remedies as defense to motion to open or vacate judgment

Subject to some exceptions, a motion to vacate will not be entertained when the proper remedy is by some other
proceeding, such as an appeal or a posttrial motion.
Except where such remedies are cumulative under the governing statutes,1 a motion for relief from a judgment will not be
entertained when the proper remedy of the party aggrieved is by appeal.2 In particular, the catch-all provision3 is not a substitute
for a timely appeal.4 However, it has been held that the availability of an appeal will not bar vacating the judgment under
particular circumstances,5 as, for instance, where the judgment is absolutely void.6
A motion for relief from a judgment is also improper if the proper remedy was by a motion for a new trial in the court rendering
the judgment,7 a motion to correct the judgment8 or other posttrial motion,9 an equity action for an injunction or other relief,10
or other proceedings.11
Footnotes
Idaho—Baldwin v. Anderson, 51 Idaho 614, 8 P.2d 461 (1932).

2 Fla.—Crocker Investments, Inc. v. Statesman Life Ins. Co., 515 So. 2d 1305 (Fla. 3d DCA 1987).
Ill.—Zimmerman v. Village of Skokie, 174 Ill. App. 3d 1001, 124 Ill. Dec. 618, 529 N.E.2d 599 (1st Dist.
1988).
Ind.—Cullison v. Medley, 619 N.E.2d 937 (Ind. Ct. App. 1993).
Mont.—Koch v. Billings School Dist. No. 2, 253 Mont. 261, 833 P.2d 181, 76 Ed. Law Rep. 564 (1992).
N.M.—Gedeon v. Gedeon, 1981-NMSC-065, 96 N.M. 315, 630 P.2d 267 (1981).
N.C.—Nations v. Nations, 111 N.C. App. 211, 431 S.E.2d 852 (1993).
N.D.—First Nat. Bank of Crosby v. Bjorgen, 389 N.W.2d 789 (N.D. 1986).
Ohio—Doe v. Trumbull County Children Services Bd., 28 Ohio St. 3d 128, 502 N.E.2d 605 (1986).
S.C.—Tench v. South Carolina Dept. of Educ., 347 S.C. 117, 553 S.E.2d 451, 158 Ed. Law Rep. 451 (2001).
Action for nullity of a judgment
La.—Ellis v. Louisiana Ins. Guar. Ass'n, 606 So. 2d 800 (La. Ct. App. 3d Cir. 1992), on reh'g, (June 16,
1992) and writ denied, 608 So. 2d 152 (La. 1992).
Motion improper attempt to circumvent appeal
Miss.—Harvey v. Stone County School Dist., 982 So. 2d 463, 233 Ed. Law Rep. 1011 (Miss. Ct. App. 2008).
Tax assessment
A taxpayer who fails to appeal from a final tax assessment may not have the assessment set aside by a
motion for relief.
Ala.—State Dept. of Revenue v. Drayton, 617 So. 2d 675 (Ala. 1992).
Sufficiency of counterclaim
A properly prosecuted appeal, rather than a motion to set aside the judgment for irregularity, is the proper
method to question the sufficiency of a counterclaim.
Mo.—Kingsley v. Kingsley, 716 S.W.2d 257 (Mo. 1986).
3 §§ 423 et seq.
4 Ala.—Osborn v. Roche, 813 So. 2d 811 (Ala. 2001).
Me.—Ezell v. Lawless, 2008 ME 139, 955 A.2d 202 (Me. 2008).
Mont.—Essex Ins. Co. v. Moose's Saloon, Inc., 2007 MT 202, 338 Mont. 423, 166 P.3d 451 (2007).
Vt.—Riehle v. Tudhope, 171 Vt. 626, 765 A.2d 885 (2000).
5 Mont.—Koch v. Billings School Dist. No. 2, 253 Mont. 261, 833 P.2d 181, 76 Ed. Law Rep. 564 (1992).
Exceptional and compelling circumstances
Absent exceptional and compelling circumstances, a failure to obtain relief through the usual channels of
appeal is not a reason justifying relief under the rule on relief from a judgment or order.
N.J.—Camacho v. Camacho, 381 N.J. Super. 395, 886 A.2d 212 (Law Div. 2005).
Additional fact
A rule pertaining to relief from a judgment may properly be invoked after a failure to perfect an appeal when
there is some additional fact present justifying extraordinary relief, which allows a trial court to invoke its
equitable powers to do justice.
Ind.—Vasquez v. State, 783 N.E.2d 1262 (Ind. Ct. App. 2003).
6 La.—Collins v. McCook, 17 La. App. 415, 136 So. 204 (2d Cir. 1931).
S.D.—In re Shafer's Estate, 50 S.D. 232, 209 N.W. 355 (1926), adhered to on reh'g, 52 S.D. 182, 216 N.W.
948 (1927).
Tex.—Dempsey v. Gibson, 105 S.W.2d 423 (Tex. Civ. App. Waco 1937), writ dismissed.
Va.—Mann v. Osborne, 153 Va. 190, 149 S.E. 537 (1929).
7 Ky.—Hamlin Const. Co., Inc. v. Wilson, 688 S.W.2d 341 (Ky. Ct. App. 1985).
Md.—Brawner v. Hooper, 151 Md. 579, 135 A. 420 (1926).
Ohio—Horwitz v. Franklin, 35 Ohio App. 95, 172 N.E. 303 (8th Dist. Cuyahoga County 1930).
8 Ind.—Bowman v. Smoot, 806 N.E.2d 811 (Ind. Ct. App. 2004).
S.D.—McDonald v. Egan, 43 S.D. 147, 178 N.W. 296 (1920).
9 Pa.—Freeman v. Bonner, 2000 PA Super 317, 761 A.2d 1193 (2000).
10 Ill.—Pedersen v. Logan Square State & Sav. Bank, 377 Ill. 408, 36 N.E.2d 732 (1941).
11 N.Y.—Railroad Federal Savings & Loan Ass'n v. Rosemont Holding Corporation, 248 A.D. 909, 290 N.Y.S.
609 (2d Dep't 1936).


Works.

§ 431. Waiver and estoppel as defenses to motion to..., 49 C.J.S. Judgments §...
Judgments
§ 431. Waiver and estoppel as defenses to motion to open or vacate judgment

The right to relief from a judgment may be lost by waiver or estoppel.
A person who would ordinarily be entitled to apply for relief from a judgment may waive the right to that relief, or be estopped
by conduct to ask for it.1
Waiver or estoppel generally results where the movant acquiesces in the rendition of the judgment,2 receives and retains benefits
under it,3 voluntarily pays its amount,4 or generally proceeds without objecting to errors or defects that may be waived, and
could have been cured on a timely objection.5 However, a plaintiff's failure to object to a damages instruction at trial did not
preclude relief from the resulting judgment, where the judge had the power to recognize any confusion that the instructions
might have caused and to order a new trial when that confusion may have contributed to the verdict.6
Pursuit of other remedies.
It has generally been held that a party waives the right to apply for relief from a judgment by pursuing other remedies, such as
by taking an appeal from it,7 although there is also authority to the contrary.8 An estoppel was not found where a ground for
the vacation of a judgment was asserted as a ground for a new trial, but was withdrawn before a ruling on that motion.9

§ 431. Waiver and estoppel as defenses to motion to..., 49 C.J.S. Judgments §...
Footnotes
1 Ky.—Kirk v. Springton Coal Co., 276 Ky. 501, 124 S.W.2d 760 (1939).
N.Y.—Whitney v. Chesbro, 244 A.D. 594, 280 N.Y.S. 138 (4th Dep't 1935).
N.C.—Braun v. Grundman, 63 N.C. App. 387, 304 S.E.2d 636 (1983).
S.C.—Thompson v. Hammond, 299 S.C. 116, 382 S.E.2d 900 (1989).
Opened on ground of fraud
Fla.—Stehli v. Thompson, 151 Fla. 566, 10 So. 2d 123 (1942).
2 N.C.—Crissman v. Palmer, 225 N.C. 472, 35 S.E.2d 422 (1945).
Acquiescence not shown
A third-party defendant's failure to appeal a judgment against it on the main demand and its request that the
state supreme court amend the judgment to limit its liability was not acquiescence in the judgment waiving
the third-party defendant's right to annulment of the judgment for failure to make it a party to the main
demand.
La.—Zale Indem. Co. v. Smith, 520 So. 2d 1273 (La. Ct. App. 5th Cir. 1988), writ denied, 521 So. 2d 1187
(La. 1988) and writ denied, 541 So. 2d 876 (La. 1989).
3 Fla.—Stehli v. Thompson, 151 Fla. 566, 10 So. 2d 123 (1942).
Ind.—Jennings v. Jennings, 531 N.E.2d 1204 (Ind. Ct. App. 1988).
N.Y.—Whitney v. Chesbro, 244 A.D. 594, 280 N.Y.S. 138 (4th Dep't 1935).
W. Va.—National Bank of Summers of Hinton v. Barton, 109 W. Va. 648, 155 S.E. 907 (1930).
4 Ohio—Lynch v. Board of Ed. of City School Dist. of City of Lakewood, 116 Ohio St. 361, 5 Ohio L. Abs.
240, 156 N.E. 188 (1927).
5 Ala.—J.R. McClenney and Son, Inc. v. Reimer, 435 So. 2d 50 (Ala. 1983).
N.C.—W.H. Ollis & Son v. Proffitt, 174 N.C. 675, 94 S.E. 401 (1917).
Wash.—Northwest Land and Inv., Inc. v. New West Federal Sav. and Loan Ass'n, 64 Wash. App. 938, 827
P.2d 334 (Div. 3 1992).
6 N.M.—Martinez v. Friede, 2004-NMSC-006, 135 N.M. 171, 86 P.3d 596 (2004).
7 La.—Sladovich v. Eureka Homestead Society, 161 La. 270, 108 So. 478 (1926).
8 Ark.—Clark v. Bowen, 186 Ark. 931, 56 S.W.2d 1032 (1933).
9 Okla.—Fellows v. Owens, 1936 OK 722, 178 Okla. 224, 62 P.2d 1215 (1936).

Works.

§ 432. Proceedings for opening or vacating judgment,..., 49 C.J.S. Judgments §...
Judgments
4. Proceedings and Relief
a. Nature and Form of Remedy
§ 432. Proceedings for opening or vacating judgment,

generally; exclusivity of remedy under statute or rule

Jurisdictions differ on whether a motion under the applicable statute or rule of civil
procedure is the exclusive means for obtaining relief from a judgment.
In a number of jurisdictions, the procedure under a statute or rule governing the right to relief from
judgments is exclusive.1 Thus, once a valid judgment is entered, the only means by which certain
trial courts may thereafter alter, amend, or vacate it is either by a motion for posttrial relief or a
motion for relief from the judgment, as authorized in the rules of civil procedure.2 These provisions
retain the substance of the devices for making an extraordinary attack on a judgment that were

in effect at the time of their adoption, even though the writs themselves were abolished.3 On the
other hand, the view has also been taken that a method of proceeding prescribed by a statute or rule
is not the exclusive remedy, but is cumulative to the common-law right to proceed.4 Where the
statutory procedure is followed, strict compliance with the statute may be necessary.5 Furthermore,
while a rule governing relief from the operation of a judgment is the appropriate procedure for
a delayed attack on a judgment,6 the inherent power of the court to grant equitable relief from a
judgment procured by fraud on the court is not subject to the requirements of a rule of procedure
for obtaining relief from a judgment.7
Proceedings to open a judgment have been said to be equitable, in nature8 or character.9 An attack
on a final judgment pursuant to a rule of civil procedure does not affect the substantive, legal merits
of the judgment, but only addresses the procedural, equitable grounds justifying relief from the
judgment's legal finality.10
It has been said that the power to vacate judgments may be exercised by the court on suggestion by
a party or interested person,11 and that a judgment procured by fraud on the court may be vacated
at any time on the suggestion of any interested party.12
Void judgments.
A motion for relief from judgment is not the exclusive means for an attack on a void judgment,13
which may be impeached by collateral attack.14 It is the court's duty to remove the cloud of a
void judgment whenever it is brought to its attention, regardless of how or when15 the objection
is conveyed to the court.16
Footnotes
1 Cal.—County of Inyo v. City of Los Angeles, 160 Cal. App. 3d 1178, 207 Cal. Rptr. 425 (3d Dist. 1984).
Colo.—People ex rel. J.A.U. v. R.L.C., 47 P.3d 327 (Colo. 2002).
Idaho—Occidental Life Ins. Co. v. Niendorf, 55 Idaho 521, 44 P.2d 1099 (1935).
Nev.—Greene v. Eighth Judicial Dist. Court of Nevada ex rel. County of Clark, 115 Nev. 391, 990 P.2d
184 (1999).
Vt.—Johnston v. Wilkins, 175 Vt. 567, 2003 VT 56, 830 A.2d 695 (2003).
Wash.—Pacific Tel. & Tel. Co. v. Henneford, 199 Wash. 462, 92 P.2d 214 (1939).
2 Colo.—People ex rel. J.A.U. v. R.L.C., 47 P.3d 327 (Colo. 2002).
Miss.—Adcock v. Van Norman, 917 So. 2d 86 (Miss. 2005).
3 Ala.—Large v. Hayes By and Through Nesbitt, 534 So. 2d 1101 (Ala. 1988).

Ill.—Mt. Zion State Bank & Trust v. Weaver, 226 Ill. App. 3d 783, 168 Ill. Dec. 583, 589 N.E.2d 983 (4th
Dist. 1992).
As to a writ of error coram nobis, see §§ 479 et seq.
4 Ga.—Donalson v. Bank of Jakin, 33 Ga. App. 428, 127 S.E. 229 (1925).
Iowa—Cedar Rapids Finance & Thrift Co. v. Bowen, 211 Iowa 1207, 233 N.W. 495 (1930).
Neb.—Welch v. Welch, 246 Neb. 435, 519 N.W.2d 262 (1994).
Nev.—Pickett v. Comanche Const., Inc., 108 Nev. 422, 836 P.2d 42 (1992).
Independent actions in equity are discussed in §§ 614 et seq.
5 Ariz.—Paul v. Paul, 28 Ariz. 598, 238 P. 399 (1925).
S.C.—Anderson v. Toledo Scale Co., 192 S.C. 300, 6 S.E.2d 465 (1939).
6 Ala.—Ex parte Matthews, 447 So. 2d 154 (Ala. 1984).
Me.—Petition of Thomas, 444 A.2d 385 (Me. 1982).
7 N.M.—Moya v. Catholic Archdiocese of New Mexico, 1988-NMSC-048, 107 N.M. 245, 755 P.2d 583
(1988).
As to whether statutes or rules affect the court's inherent authority, see § 357.
Fraud on the court is discussed in § 404.
8 Pa.—Manor Bldg. Corp. v. Manor Complex Associates, Ltd., 435 Pa. Super. 246, 645 A.2d 843 (1994).
9 Wash.—Winter v. Department of Social and Health Services on behalf of Winter, 12 Wash. App. 2d 815,
10 Ind.—Sanders Kennels, Inc. v. Lane, 153 N.E.3d 262 (Ind. Ct. App. 2020).
11 N.C.—Fowler v. Fowler, 190 N.C. 536, 130 S.E. 315 (1925).

As to action on the court's own motion, see § 434.
As to persons who may bring the proceedings, see § 454.
12 Ariz.—Kendall v. Silver King of Arizona Mining Co., 26 Ariz. 456, 226 P. 540 (1924).
N.M.—Moya v. Catholic Archdiocese of New Mexico, 1988-NMSC-048, 107 N.M. 245, 755 P.2d 583
(1988).
13 Ill.—Northern Illinois Gas Co. v. Midwest Mole, Inc., 199 Ill. App. 3d 109, 145 Ill. Dec. 374, 556 N.E.2d
1276 (2d Dist. 1990).
Ohio—Sampson v. Hooper Holmes, Inc., 91 Ohio App. 3d 538, 632 N.E.2d 1338 (9th Dist. Summit County
1993).
14 § 704.
15 § 435.
16 R.I.—Flynn v. Al-Amir, 811 A.2d 1146 (R.I. 2002).

Government Works.

§ 433. Motion for opening or vacating judgment in action,..., 49 C.J.S. Judgments §...
Judgments
§ 433. Motion for opening or vacating judgment in action, separate action, or petition

Generally, a motion for relief from a judgment is brought in the same case in which the
judgment was rendered, although some statutes require filing an independent action or a
petition.
The appropriate method of seeking relief from a judgment under most statutes or rules of civil
procedure is by a motion.1 Such a motion is filed in the action in which the judgment was rendered.2
However, some statutes require filing a new and separate proceeding.3 Also some rules, while
recognizing that the typical approach is by filing a motion in the court that rendered the judgment,
may also provide for collateral attack on a judgment by filing an independent action.4

§ 433. Motion for opening or vacating judgment in action,..., 49 C.J.S. Judgments §...
Some statutes provide for a petition for relief from a judgment.5 A petition to vacate a judgment,
while filed in the court that heard the underlying action, has been regarded as a new proceeding,
separate from, and independent of, the action in which the judgment was entered,6 but it has
elsewhere been said not to be in the nature of a new or independent action, but supplementary.7
Relief from a judgment of dismissal may not be sought in a declaratory judgment action.8
Footnotes
1 Cal.—In re Marriage of Baltins, 212 Cal. App. 3d 66, 260 Cal. Rptr. 403 (1st Dist. 1989).
Ga.—Peagler v. Glynn County Federal Employees Credit Union, 171 Ga. App. 9, 318 S.E.2d 687 (1984).
N.Y.—El Sawah v. Penfield Mechanical Contractors, Inc., 119 A.D.2d 980, 500 N.Y.S.2d 878 (4th Dep't
1986).
Wash.—Wilson v. Henkle, 45 Wash. App. 162, 724 P.2d 1069 (Div. 1 1986).
2 Fla.—Bane v. Bane, 775 So. 2d 938 (Fla. 2000).
Ga.—Peagler v. Glynn County Federal Employees Credit Union, 171 Ga. App. 9, 318 S.E.2d 687 (1984).
3 La.—Succession of Schulz, 622 So. 2d 693 (La. Ct. App. 4th Cir. 1993), writ denied, 631 So. 2d 1161 (La.
1994).
4 Ala.—EB Investments, L.L.C. v. Atlantis Development, Inc., 930 So. 2d 502 (Ala. 2005).
Independent actions in equity are discussed in §§ 614 et seq.
5 Ill.—In re Marriage of Hamm-Smith, 261 Ill. App. 3d 209, 198 Ill. Dec. 763, 633 N.E.2d 225 (4th Dist.
1994).
6 Ill.—Browning, Ektelon Div. v. Williams, 256 Ill. App. 3d 299, 195 Ill. Dec. 414, 628 N.E.2d 878 (1st Dist.
1993).
7 Iowa—In re Marriage of Fairall, 403 N.W.2d 785 (Iowa 1987).
8 Ill.—Hopkins v. Holt, 194 Ill. App. 3d 788, 141 Ill. Dec. 407, 551 N.E.2d 400 (1st Dist. 1990) (rejected on
other grounds by, People v. Howard, 363 Ill. App. 3d 741, 300 Ill. Dec. 537, 844 N.E.2d 980 (1st Dist. 2006)).

Government Works.

§ 434. Vacating judgment on court's own motion, 49 C.J.S. Judgments § 434
Judgments
§ 434. Vacating judgment on court's own motion

The power of courts to vacate judgments, especially void judgments, on their own motion
has been recognized.
Courts have been broadly said to be authorized to vacate their judgments on their own motion,1
and, independently of statutory provisions, to annul on their own motion, and within a reasonable
time, judgments inadvertently made.2 More particularly, during the term at which a judgment was
rendered, the court has the power on its own motion to vacate it,3 or a rule may give a court that
power within 30 days of the entry of the judgment.4 A court may vacate a void judgment on its

§ 434. Vacating judgment on court's own motion, 49 C.J.S. Judgments § 434
own motion.5 When a court enters a judgment and fails to make requested findings of fact and
conclusions of law, it may, of its own motion, vacate it.6
A court vacating a judgment on its own motion should give notice and an opportunity to be heard
on the matter.7
Footnotes
1 Iowa—Matter of Estate of Borrego, 490 N.W.2d 833 (Iowa 1992).
Mo.—Blank v. Blank, 621 S.W.2d 954 (Mo. Ct. App. W.D. 1981).
N.M.—Nichols v. Nichols, 1982-NMSC-071, 98 N.M. 322, 648 P.2d 780 (1982).
Tex.—State v. $50,600.00, 800 S.W.2d 872 (Tex. App. San Antonio 1990), writ denied, (Feb. 13, 1991).
Wis.—Larry v. Harris, 2008 WI 81, 311 Wis. 2d 326, 752 N.W.2d 279 (2008).
In exceptional circumstances
N.M.—Martinez v. Friede, 2004-NMSC-006, 135 N.M. 171, 86 P.3d 596 (2004).
2 Cal.—Burbank v. Continental Life Ins. Co., 2 Cal. App. 2d 664, 38 P.2d 451 (1st Dist. 1934).
3 Ark.—First State Bank of DeQueen v. Gamble, 14 Ark. App. 53, 685 S.W.2d 173 (1985).
Ga.—Bricks v. Walker Showcase, Inc., 255 Ga. 122, 336 S.E.2d 37 (1985).
Mo.—Savings Trust Co. of St. Louis v. Skain, 345 Mo. 46, 131 S.W.2d 566 (1939).
Neb.—Manske v. Manske, 246 Neb. 314, 518 N.W.2d 144 (1994).
Okla.—Roland Union Graded School Dist. No. 1 of Sequoyah County v. Thompson, 1942 OK 122, 190
Okla. 416, 124 P.2d 400 (1942).
As to the power of a court over a judgment during term, see § 360.
4 Ala.—Pierce v. American General Finance, Inc., 991 So. 2d 212 (Ala. 2008).
5 Ind.—Isaacs v. Fletcher American Nat. Bank, 98 Ind. App. 111, 185 N.E. 154 (1933).
N.C.—Clark v. Carolina Homes, 189 N.C. 703, 128 S.E. 20 (1925).
R.I.—Flynn v. Al-Amir, 811 A.2d 1146 (R.I. 2002).
Wash.—Ballard Sav. & Loan Ass'n v. Linden, 188 Wash. 490, 62 P.2d 1364 (1936).
6 Mo.—Arrington v. Loehr, 619 S.W.2d 888 (Mo. Ct. App. S.D. 1981).
7 Iowa—Matter of Estate of Borrego, 490 N.W.2d 833 (Iowa 1992).

Mo.—Brockhoff v. Leary, 711 S.W.2d 869 (Mo. 1986).
Wis.—Larry v. Harris, 2008 WI 81, 311 Wis. 2d 326, 752 N.W.2d 279 (2008).

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§ 394. Power of courts to open or vacate own judgments, 49 C.J.S.

49 C.J.S. Judgments § 394

Corpus Juris Secundum | August 2021 Update

XI. Alteration of and Relief from Judgment

C. Opening and Vacating

§ 394. Power of courts to open or vacate own judgments

Topic Summary | References | Correlation Table

West's Key Number Digest

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49 C.J.S. Judgments § 395

Corpus Juris Secundum | August 2021 Update

XI. Alteration of and Relief from Judgment

C. Opening and Vacating

Topic Summary | References | Correlation Table

West's Key Number Digest

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14 Wyo.—Stevens v. Murphy, 680 P.2d 78 (Wyo. 1984).

End of Document © 2021 Thomson Reuters. No claim to original U.S. Government

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49 C.J.S. Judgments § 396

Corpus Juris Secundum | August 2021 Update

XI. Alteration of and Relief from Judgment

C. Opening and Vacating

§ 396. Motion to open or vacate judgment distinguished from other motions

Topic Summary | References | Correlation Table

West's Key Number Digest

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End of Document © 2021 Thomson Reuters. No claim to original U.S. Government

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49 C.J.S. Judgments § 397

Corpus Juris Secundum | August 2021 Update

XI. Alteration of and Relief from Judgment

C. Opening and Vacating

2. Right to and Grounds for Relief

a. General Principles and Grounds

§ 397. Grounds on which courts may open or vacate judgments, generally

Topic Summary | References | Correlation Table

West's Key Number Digest

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9 Ark.—Dent v. Adkisson, 203 Ark. 176, 157 S.W.2d 16 (1941).

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 2

12 Alaska—Dickerson v. Goodman, 161 P.3d 1205 (Alaska 2007).

End of Document © 2021 Thomson Reuters. No claim to original U.S.

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49 C.J.S. Judgments § 398

Corpus Juris Secundum | August 2021 Update

XI. Alteration of and Relief from Judgment

C. Opening and Vacating

2. Right to and Grounds for Relief

a. General Principles and Grounds

§ 398. Opening judgment on grounds previously raised in action

Topic Summary | References | Correlation Table

West's Key Number Digest

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Subsequent changes in law.

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