| Minn. | Feb 17, 1888
Demurrer to a complaint in an action conceded to have been brought by virtue of Gen. St. 1878, c. 66, § 285, to set aside and annul a judgment in divorce a vinculo matrimonii, entered in 1879, upon alleged default of defendant, the plaintiff herein, who was charged with adultery. Immediately after the entry of said judgment, plaintiff in said action married Pauline Ganner, one of the defendants herein, by whom he had one child at least, and with whom he lived until his death in 1885. There are several children living, the issue of the marriage between this plaintiff and deceased, neither of whom are made parties to this litigation. The statute in question supplants to some extent former methods of vacating and annulling fraudulent judgments. It goes further, and, perhaps improvidently, authorizes the maintenance of an action when a judgment has been procured by perjury or subornation thereof, as well as where a fraud has been committed. The innovation upon the practice in such cases is so marked that parties must certainly expect to bring their pleadings within all the provisions and conditions imposed, especially that which, in express terms, requires the action to be brought within the period of three years after a discovery of the commission or subornation of perjury, or the fraudulent practice of the prevailing party. In the case at bar it is somewhat difficult to determine, from the complaint, whether plaintiff relies upon perjury alleged to have been committed on the trial, or acts of fraud practised in obtaining the decree, or both; and in this respect the pleading is defective. It should clearly and unmistakably aver the precise ground depended upon for the relief demanded, so that the defendants may be advised of the exact charge, and the court prepared to confine the testimony to the real issue.
Several grounds of demurrer are specified therein, (only one of which we have commented upon,) and the court below was fully justified in sustaining it, for the reason that the pleading fails to state a cause of action. But we are not advised of the reason which actuated the court and caused it to go further, and in effect order judgment of dismissal. As it may have been a conviction that an action of the character set forth in the complaint could not, in any event, be successfully maintained, we have deemed it judicious, in view of the importance of the questions suggested by the case as presented, and the fact that the trial court may yet have to determine the merits of the controversy, to discuss somewhat in detail the law relative to the effect and stability — in the absence of positive legislation upon the point — of a judgment dissolving the marriage contract.
Aside from a well-justified reluctance to annul decrees in cases where second marriages have been contracted, the tribunals of this country have, with few exceptions, treated final decrees in divorce precisely as final judgments in ordinary civil actions. When fraudulently obtained they have been repeatedly set aside upon motion, and wholly ignored in criminal prosecutions, without regard to consequences, and the apparent wrong which might be perpetrated upon adults who had married the divorced party, or upon innocent children, the issue of such marriages. Many years ago this court was
We will now'consider a feature of the case which has somewhat ■complicated the situation, and upon which the counsel for respond-ents has argued at length, insisting that plaintiff’s right of action tended upon the decease of Bomsta, in 1885. The statute — section 285, supra — imposes no restrictions whatsoever, and in no way makes the right to sue depend upon any contingency, except as before stated. In plain words, authority is conferred to bring such an action within three years after the fraud and imposition is discovered, and the right does not terminate with the life of the wrong-doer; it may thereafter be pursued in the manner pointed out by the statute. Courts of equity will also exercise jurisdiction in such cases where the remedy ■at law is not plain, adequate, and complete. Story, Eq. PL §§ 426, •473; Johnson v. Coleman, 23 Wis. 452" court="Wis." date_filed="1868-10-15" href="https://app.midpage.ai/document/johnson-v-coleman-6600088?utm_source=webapp" opinion_id="6600088">23 Wis. 452. The complaint herein states, as before mentioned, that there are children surviving Bomsta, the issue of each of these marriages, and that the defendant Johnson is the administrator of his estate, which it is alleged is of the value of $10,000. If a gross fraud was practised upon the plaintiff by her husband, and her matrimonial status should be re-established in this
Order affirmed.