Page:Federal Reporter, 1st Series, Volume 8.djvu/545

 EEOOKS V. o'hABA. S31 �fietitious; that the Burlington & Southwestern Eailway Company, prior to the commencement of said suit in Appanoose county by respondents, had paid to them, for grading and work done in the construction of its road, the sum of two hundred and thirty-two thousand (232,000) dollars, and the amount sued for by them was for a claimed balance unpaid, which your orators charge was fraudaient, and that no such balance was due, and that the money paid by said railway company, as aforesaid, more than paid said respondents for all the work they had ever done upon said railway ; that said supposed balance was made to appear either by mistake of all the parties, or by false statementa of the amount, and deception practiced upon the Burlington & Southwestern Railway Company, or its engineer, or by collusion with the ofiicers of that Company to defeat and injure the claims represented by your orators, and to defraud the holders of the bonds secured by the mortgage to your oratora ; that said claim was either a mistake, or was false or fraudulent, and based upon no consideration, and upon a claim for work which was never done and ought never to have been allowed, all of which was unknown to your orators, and with reasonable diligence could not be learned during the pendency of the suit in this cotirt; the only one to which your orators were parties." �The prayer is for an injunction to restrain the execution of the decree, and that the same be set aside. Eespondents demur to the bill. The demurrer is general, and the points raised under it are stated in the opinion. �P. Henry Smyth, for complainants. �Hubbard dt CZarfc, for respondents. �MoCeary, C. J. 1, The bill does not allege with sufficient partic- ularity that the decree which is sought to be set aside was obtained by fraud. �It alleges in general terras that there was nothing due the re- spondents on their claim, and it is averred that "the amount sued for by them was for a claimed balance unpaid, which your orators charge was fraudulent, and that no such balance was due, and that the money paid by said railway company, as aforesaid, more than paid respondents for all the work they had ever done for said railway." �It is further alleged that "said supposed balance was made to appear, either by a mistake of all the parties, or by false statements of the amounts, and deception practiced upon the Burlington & South- western Eailway Company or its engineer, or by collusion with ofEi- cers of that company, to defeat and injure the claims represented by your orators, and to defraud the holders of bonds secured by the mortgage of your orators. �"That said claim was either a mistake, or was false and fraudulent, and based upon no consideration, and upon a claim for work which was never done, and ought never to have bcisn allu.ie-l, all of which waa unknown to ��� �