97 Kan. 616 | Kan. | 1916
The opinion of the court was delivered by
The plaintiff appeals from an order refusing her application to open up and vacate a decree of divorce.
November 11, 1912, the defendant was by the district court of Jefferson county granted a divorce from the plaintiff. The service was by publication, the affidavit stating that with due diligence the plaintiff was unable to procure personal service within the state, “that the whereabouts of said defendant is unknown to affiant, and that her post-office address can not be ascertained by plaintiff by any means within his control.” In January, 1914, the plaintiff filed her petition in the same court to open up the decree, and in March, 1914, filed her amended petition. To this a demurrer was filed, on the ground of. failure to state facts sufficient to constitute a cause of action, and sustained.
The plaintiff contends that the court was without jurisdiction to grant the divorce for the reason that no proper affidavit
Plaintiff’s petition averred that the decree of divorce was procured by fraud in that she, during all of the time, was living at Fairview in Brown county, where she was a resident in good faith, which was well known to the plaintiff, who falsely and fraudulently and with intent to deceive the court and to cheat and defraud the plaintiff made the false affidavit; that the ground for divorce alleged and sworn to by the plaintiff was false and the decree was procured by the defendant’s perjury and deceit, and that the plaintiff had no notice of the proceeding until long after the trial was had. Further, that she had.a complete defense to the action and would have appeared and defended had she been duly summoned or had proper notice. She set forth a complete defense, and also a sufficient affirmative ground for divorce.
The defendant takes the position that a decree of divorce can not be opened up for fraud in its procurement unless the proceeding therefor is begun within the six-months period at the close of which the decree becomes absolute. (Civ. Code, § 674.)
In case of an ordinary judgment or decree plaintiff’s amended petition would be fully sufficient for the purpose intended, (Daniel Hill v. Elias Williams, 6 Kan. 17; Laithe v. McDonald, 7 Kan. 254;. Laithe v. McDonald, 12 Kan. 340; Fullenwider v. Ewing, 30 Kan. 15, 1 Pac. 300; Mulvaney v. Lovejoy, 37 Kan. 305, 15 Pac. 181; The State v. Soffietti, 90 Kan. 742, 136 Pac. 260; Milling Co. v. Stevens, 94 Kan. 745, 748, 147 Pac. 815.)
The real question for determination is whether or not a decree of divorce is governed by a different rule on account of
It is stated in the brief of the defendant that he has remarried and a child has been born of the union. But lamentable as the consequences may be to the innocent child and its mother, the right of the plaintiff to clear herself and her child from a stigma still more unjust, if her petition is true, is in no wise impaired.
The statute having provided a way, which the plaintiff has followed, for vacating decrees procured by the fraud of the prevailing party, and having made no exception in favor of a ■decree of divorce it was error to sustain the demurrer to the amended petition.
The judgment is therefore reversed and the cause remanded for further proceedings.