Can a valid lawful act be accomplished by an unlawful means?
Posted on: February 7, 2009 by: admin
As a preface, we agree with the trial court that fraud in the procurement of Sperry’s waiver of summons was established. The law applicable is well stated by the Supreme Court of Kansas in the case of Abercrombie v. Abercrombie, 64 Kan. 29, 35, 67 Pac. 539, 541, as follows:
[41] “The jurisdiction of the Colorado court over the defendant having been obtained fraudulently by the plaintiff, it would be anomaly in the law for this court to assist her in reaping the fruit of her fraudulent conduct. It has long been a rule of this court that, where jurisdiction of a defendant has been obtained by fraud or wrong, he may appear in the action, showing such fraud, and the court will always grant relife. If this is true, can there be any well defined distinction between permitting him to appear in the original action to show the fraud and in allowing him to set up such fraud in an action brought upon a judgement rendered in a case where jurisdiction of the defendant was obtained by fraud? Can a valid lawful act be accomplished by an unlawful means? * * * Devereux v. Sperry, 89 P.2d 532 (Colo. 1939).
