I concur in the judgment.

The plaintiff cannot maintain an action to set aside the judgment complained of, unless the defendants in that action had such right, and it is incumbent on him to set forth his right of action as fully as it would be for them had they sought such relief. In an action to set aside a judgment for fraud, the plaintiff must not only show by his complaint the facts constituting the fraud which give him his right to the relief, but must also show that he has a defense to the original action upon the merits, and that he is able to present to the court the evidence constituting that defense. It is not sufficient to merely allege these matters as ultimate facts, or to aver them in the form of an affidavit of merits, but the facts themselves •— those constituting the fraud, those constituting his defense, and those constituting his ability to present them to the court—must be incorporated into his complaint, so. that the court may determine that if his allegations are admitted by the other party, the plaintiff would have been entitled to a judgment in his favor in the original action.

“A bill to set aside a decree for fraud must state the decree, and the proceedings which led to it, with the circumstances of fraud on which, it is impeached.” (2 Daniell's Chancery Practice, *1585; Story's Eq. PL, sec. 428.) “ The bill should state particularly the facts to be proved, the names of the witnesses, and show the bearing and relevancy of the proposed proofs. It should also show when and how the facts discovered came to the knowledge of the plaintiffs, and why no motion for a new trial was made in the court trying the case.” (Mulford v. Cohn, 18 Cal. 46 .)

If the plaintiff seeks to maintain the action upon the ground of newly discovered evidence, he “ must describe the new evidence very distinctly and specifically, and state when it was discovered, and its bearing on the decree. It is not sufficient that he expects to prove certain facts; he must state the exact evidence to establish *154 them.” (1 Daniell’s Chancery Practice, *1578, note 1; Dexter v. Arnold, 5 Mason, 312 ; Livingstone v. Noe, 1 Lea, 55; Butler v. Vassault, 40 Cal. 76 .)

An action of this nature must be brought within the time prescribed for an appeal from the original judgment (Allen v. Currey, 41 Cal. 318 ; Evans v. Bacon, 99 Mass. 213 ); and all who were parties to the original judgment must be made parties to the action to set it aside. (Harwood v. Railroad Co., 17 Wall. 78 .)

The complaint herein is defective in all of the foregoing requisites. The former judgment and “the proceedings which led to it ” are not set forth, either generally or specifically. There is but a single reference thereto wherein its effect is averred, but the form of the judgment is not presented in the complaint. The complaint also fails to show whether the court had jurisdiction of the defendants; the averment that one of them “ received ” no summons is not inconsistent with the fact that the court may have had jurisdiction over him.

The fraud which is alleged is found in the averments that the complaint was drawn “ with the intent” that the defendant should not suspect the real object of the action, and that the plaintiffs “represented to Lilian Cullen and other defendants” that they were joined as defendants therein as a matter of form only, and that they need not appear or answer therein. Not only is this averment defective in not setting forth the original complaint itself, so that the court can determine whether the “ intent ” with which it was drawn is such as the plaintiff alleges, and in not showing in what manner the plaintiffs therein made the “ representations ” charged, but the entire averment is made upon information and belief, without setting forth the sources of the information or the grounds for the belief Other averments essential to his cause of action are also made upon information and belief.

In an action of this nature, it is incumbent upon the plaintiff to make his averments with such definiteness and certainty, particularly those relating to the fraud *155 which is charged, that the court will be able to determine whether he has the right to have its former judgment set aside. The solemn judgment of a court is not to be set aside upon the mere allegations of a defendant that he has been informed and believes that it was fraudulently obtained. The court must be informed whether his information was reliable, or only a street rumor, and the information must be set forth in his complaint so that it may be known whether his belief had a substantial basis, or was only the result of excessive credulity.

It is not a sufficient answer to this rule that the code permits a complaint to be made upon information and belief. The provision of the code that causes in equity, as well as those at law, are to be presented under the same form of pleading, has not changed the principles under which equitable relief shall be granted. When a plaintiff’s right to such relief depends upon facts which are quasi jurisdictional in their nature, — such as his personal status, his freedom from negligence or laches, the fraudulent or inequitable conduct of the party against whom that relief is sought, or matters in respect to which the court may exercise its discretion, or which it must determine have an existence before it can entertain his complaint, — it is as essential under the present system as under any other that those matters should be presented by such positive and verified allegations that the court may determine their sufficiency. The plaintiff cannot substitute his own judgment for that of the court, and a complaint in which these jurisdictional facts are alleged upon the information and belief of the plaintiff does not state facts sufficient to show that he has a right of action.

The plaintiff does not show that he has sought this relief with sufficient promptness. He does not allege when he acquired any interest in the land, or from whom he acquired it, — his averment being, that it was duly conveyed to him for value “ before the commencement of this action.” Such an allegation is consistent *156 with a conveyance before the former action, or from per. sons other than the defendants in that action. Neither does the plaintiff allege when he received the information which is the basis of this action, or indeed that he knows or can produce any evidence which will vary the former judgment, — his only averment being, that in September, 1889, it was “ intimated ” to him that the land could be identified by one Wheeler, and that if the judgment is set aside, he can produce his evidence; but he does not show, except by recital, the nature or effect of the evidence that he expects to produce.

Under thejforegoing principles, the complaint failed to state a cause of action, and the demurrer was properly sustained. Upon the question discussed by Mr. Justice Garoutte, I express no opinion.