MOSK, J. pro tem.
On May 25, 1948, respondent bank obtained a judgment in the Municipal Court of the City of Los Angeles against appellant on a promissory note. A motion for new trial was denied on September 7, 1948, no appeal was taken, and the judgment became final.
Thereafter, on September 24, 1948, appellant filed in the superior court a new suit in equity praying that the municipal court judgment be vacated and declared void, that respondent be enjoined from enforcing the judgment, and that the promissory note be delivered to appellant and cancelled.
The complaint alleged that the note was executed by appellant and delivered for the express purpose of securing a loan from respondent bank, "and said Bank to pay over the proceeds of said loan to the Capital Company (a California corporation)"; that the bank accepted the note but at no time paid the proceeds to the Capital Company; that no consideration of any kind passed from respondent to appellant; that during the course of proceedings in the municipal court appellant "was led to believe" from conversations with agents and employees of respondent bank that the proceeds of the note had been paid to the Capital Company; that "immediately after the trial of the action in the Municipal Court" appellant discovered the statements made by respondent through its agents and employees were false; that the representations were known to be false by respondent's agents and employees and were made for the purpose of misleading and deceiving appellant, in order that appellant would not introduce evidence at the trial to the effect that the proceeds of the loan were not paid over to the Capital Company; that subsequent correspondence (quoted in haec verba) was not answered satisfactorily to appellant; that appellant has a good and sufficient defense to the municipal court action.
To this complaint the respondent demurred. On October 29, 1948, the demurrer was sustained and appellant was given 15 days in which to amend. Notice of the ruling was waived in open court. Appellant did not amend during that period or at all.
Appellant maintains he has stated a proper cause of action based on extrinsic fraud, and that his complaint should have prevailed against the demurrer.
Duffy v. Duffy, 82 Cal.App.2d 203 [186 P.2d 61], Bacon v. Bacon, 150 Cal. 477 [89 P. 317], Ringwalt v. Bank of America Assn., 3 Cal.2d 680 [45 P.2d 967], and other cases cite with approval the illustrations in this quotation from United States v. Throckmorton, 98 U.S. 61, 65 [25 L.Ed. 93]: "But there is an admitted exception to this general rule, in cases where, by reason of something done by the successful party to the suit, there was, in fact, no adversary trial or decision of the issue in the case. Where the unsuccessful party has been prevented from exhibiting fully his case, by fraud or deception practiced on him by his opponent, as by keeping him away from court, a false promise of a compromise; or where the defendant never had knowledge of the suit, being kept in ignorance by the acts of the plaintiff; or where an attorney fraudulently or without authority assumes to represent a party and connives at his defeat; or where the attorney regularly employed corruptly sells out his client's interest to the other side — these, and similar cases which show that there has never been a real contest in the trial or hearing of the case, are reasons for which a new suit
Appellant maintains that he had a good defense to the prior action, meaning failure of consideration, and cites Oakland Medical Bldg. Corp. v. Aureguy, 41 Cal.2d 521 [261 P.2d 249] as authority. The facts here, however, indicate he did raise that defense.
In his verified municipal court answer, appellant pleaded as a separate affirmative defense failure of consideration for the execution of the note. Thus there was placed before the court in that proceeding the very issue which appellant desires to litigate in the instant case. That he failed to present evidence on that subject and therefore an adverse decision
Under those circumstances, appellant was not justified in relying upon statements of unnamed agents and employees of respondent with whom he was not only dealing at arm's length, but who were then his adversaries in litigation. (Jorgensen v. Jorgensen, supra.) He had several procedural means of ascertaining the facts in the municipal court action, and in view of his defense of failure of consideration, he had an affirmative duty to avail himself of them.
Examination of the pleadings and the record herein makes it clear that appellant's complaint failed to state a cause of action and the demurrer to it was properly sustained. We therefore cannot disturb the subsequent granting of the motion to dismiss and the judgment of dismissal after failure to take advantage of an opportunity to amend.
The judgment is affirmed.
White, P.J., and Doran, J., concurred.