"Fraud upon the court" Definition

Taken from; http://www.caught.net/prose/gembala.htm

"Fraud upon the court" occurs whenever any officer of the court commits fraud before a tribunal. A judge is not a court; he is under law an officer of the court, and he must not engage in any action to deceive the court. Trans Aero Inc. v. LaFuerga Area Boliviana, 24 F.3d 457 (2nd Cir. 1994); Bulloch v. United States, 763 F.2d 1115, 1121 (10th Cir. 1985) (fraud upon the court exists "where the judge has not performed his judicial duties").

The Supreme Court, In re Eugene Lee Armentrout et al., 99 Ill.2d 242, 75 Ill.Dec. 703, 457 N.E.2d 1262 (1983), stated that:

"Fraud encompasses a broad range of human behavior, including " ' * * * anything calculated to deceive, * * * whether it be by direct falsehood or by innuendo, by speech or by silence, by word of mouth or by look or gesture.' " (Regenold v. Baby Fold, Inc. (1977), 68 Ill.2d 419, 435, 12 Ill.Dec. 151, 369 N.E.2d 858, citing People ex rel. Chicago Bar Association v. Gilmore (1931), 345 Ill. 28, 46, 177 N.E. 710; In re Alschuler (1944), 388 Ill. 492, 503-04; Black's Law Dictionary 594 (5th ed. 1979).) Too, this court has previously disciplined lawyers even though their fraudulent misconduct did not harm [99 Ill.2d 252] any particular individual. In re Lamberis (1982), 93 Ill.2d 222, 229, 66 Ill.Dec. 623, 443 N.E.2d 549."

Intrinsic Fraud is Fraud by fraudulent conduct that arises within the proceedings and pertains to the issue in the case that could have been tried. When a Plaintiff gives false testimony he prevents a motion from being heard by the Court, committing Intrinsic Fraud. [I]f a judgment was obtained upon false testimony or aFraudulent instrument and the parties were heard, the evidenceSubmitted to and received consideration by the court, then it maybe said that the matter has been actually tried and the parties arestopped to set up an intrinsic or direct fraud to vitiate the judgment,because the judgment is the highest evidence and cannot be contradicted by the parties to it. Johnson v. Wells, 72 Fla. 290, 299, 73 o. 188, 191 (1916).

The Definition of Extrinsic Fraud was specifically articulated in the United States v. Throckmorton, 98 US 61, 65-66, 25 L.Ed 93 (1878), in which the United States Supreme Court said: Where the unsuccessful party has been preventedfrom exhibiting fully his case, by fraud or deceptionpracticed on him by his opponent, as by keeping himaway from court, a false promise of compromise; orwhere the defendant never had knowledge of the suit,being kept in ignorance by the acts of the Plaintiff; orwhere an attorney fraudulently or without authorityassumes to represent a party and connives as his defeat;or where the attorney regularly employed corruptly sellsout his client’s interest to the other side-these, and similarcases which show that there has never been a real contestin the trial or hearing of the case, are reason which a newsuit may be sustained to set aside and annul the formerjudgment or decree, and open the case for a new and fairhearing.

I. THE 7TH CIRCUIT COURT OF APPEALS STATES, “A DECISION PRODUCED BY FRAUD UPON THE COURT IS NOT IN ESSENCE A DECISION AT ALL, AND NEVER BECOMES FINAL.