179 N.W. 498 | S.D. | 1920
A decree was rendered -by the circuit court granting to plaintiff an absolute divorce . from defendant; but, in conformity with her complaint, wherein she had alleged that there had been an adjustment of property interests and waived any claim to the property of defendant, the decree granted her no alimony. This decree was entered on August 5, xpiB. Before the final adjournment of term of court at which such decree was rendered and entered the plaintiff procured from the trial court an order to show cause, requiring the defendant to show cause why the decree should not be vacated and said cause reheard and alimony, temporary and permanent, allowed. Upon the return of said order affidavits were submitted by both parties, and the court made and entered an order vacating the decree and granting plaintiff time within which to serve an amended complaint, and to take such further proceedings • as she might desire, and providing that the cause should thereafter proceed as though no decree had been made. From such an order this appeal was taken.
Appellant contends that the trial court was without jurisdiction to entertain the motion to vacate the decree — he contending that respondent’s remedy was an action in equity. He bases such contention upon the assertion that the term at which the decree was entered had ¡been adjourned prior to the procedings to vacate decree. It is unnecessary for us to consider the question whether a decree can be vacated upon motion after the adjournment of the term at which it was rendered, because it appears by respondent’s brief, and is undisputed in appellant’s reply brief, that such term had not been adjourned when the order to show cause was issued by the court.
The grounds upon which respondent’s motion to vacate the decree was based, and which the court found sustained by the evidence, were that such decree had been procured through the fraud of appellant practiced upon the court and fraud, coercion, and duress practiced by appellant upon respondent. Appellant contends that the evidence received did not sustain the
The trial court was justified in finding' that, in starting and prosecuting the divorce action, respondent was but a mere puppet, acting under the controlling will of appellant, because implicitly believing in the representations that he made, including the representation that he' believed his life in peril while they were not divorced. It is true that there was no direct testimony that supports respondent’s theory that the representations by appellant as to receipt of threatening letters were false; but there was certain hearsay evidence ■ tending to discredit such representations, and the conduct of appellant, after the entering of the decree was so inconsistent with his previous promises that the trial court did, and this court does, draw the inference therefrom that there was absolutely no truth in such representations.
The order appealed from is affirmed.