7 Mo. App. 121 | Mo. Ct. App. | 1879
Lead Opinion
delivered the opinion of the court.
This is an action for divorce. The petition was filed on November 16, 1877, and states that the parties were married in 1840. Amongst other things, it is alleged that the defendant is worth $200,000. There is a prayer for alimony. The answer admits the marriage, and denies all other allegations. It also sets up as matter of defence a former divorce. The original petition and decree are set out in full. The petition was filed on April 2, 1866, by the defendant in the present action, in the Circuit Court of Linn County, Missouri. It alleges various sufficient grounds of divorce, and appears to comply with the statute. The decree is dated August 6, 1867. It recites that the parties appeared on that day, Maria DeGraw appearing by attorney, withdrawing her answer and cross-bill, and saying nothing. The decree proceeds: “And this cause coming on for final hearing and judgment, it appearing to the satisfaction of the court that the defendant had been duly served with process in all respects according to law, having been personally served with a copy of the original writ and petition by the sheriff of Linn County, Missouri, and the court being fully advised of the whole matter, it is therefore considered that the plaintiff herein is a much injured person; that the bonds of matrimony between the plaintiff and defendant ought to be forever dissolved.
“ Wherefore it is ordered, adjudged, and decreed by the court, that the bonds of matrimony existing between plaintiff and defendant be, and they are hereby, declared forever dissolved.
“ That the defendant be, and she is hereby, allowed to
The answer says that this decree remains unreversed; that said Maria, at the time of making said decree, and ever since, has been fully advised of the same, and has up to the time of this suit, fully acquiesced in the same ; that she has used the privileges of said decree by assuming her maiden name of Maria E. King, and by that name made herself known and transacted all her business; that defendant herein, in good faith, believing himself duly divorced, on the 22d of June, 1868, married again, and is raising a family of children by the second marriage; that defendant, ever since the former divorce, has continued to reside in Linn County, Missouri, with his last wife and family, and transacted all his business there, with plaintiff’s full knowledge.
The plaintiff replies that, after the petition in divorce set out in the answer was filed by the defendant, and before the decree of divorce was entered, the defendant here, the plaintiff in that case, caused the allegations of adultery to be stricken out of his petition; that all the allegations in his petition were known to him to be untrue; that he followed her to Nevj York during the pendency of that suit and wrongfully caused her arrest, to prevent her from procuring testimony ; that he got possession of the depositions taken for her in the cause and unlawfully suppressed them ; that he intimidated her into signing a stipulation to withdraw all opposition to that suit, and, by threats, intimidation, and cruelty compelled her to admit .the charges in the petition that remained after the graver accusations were stricken out; that no proof was offered in support of these charges, and that the decree was collusively procured; that the petition, after the matters spoken of were stricken
The defendant demurred to the reply. The demurrer was sustained ; and the plaintiff declining further to plead, the new matter was taken as confessed. The plaintiff, on the trial, offered evidence tending to prove the allegations of the petition and reply. This testimony was excluded, and the court found for the defendant. The plaintiff brings the cause here on appeal.
The well-settled rule is, that, if the plaintiff obtain judgment, and by his own showing have no cause for action, yet if the court has jurisdiction of the cause, it is only an erroneous judgment, and is not void. If the court has no jurisdiction of the cause, it is a void judgment. But there can be no doubt that the filing of a petition such as ought not to be held good on demurrer, may confer jurisdiction. Freem. on Judg., sect. 118; McNamara on Nullities, 137. And so it is said : “If the Court of Common Pleas holds pleas in debt, trespass, etc., without an original, it is not void, for they are judges of those pleas, and it cannot be said the proceeding was coram non judice.” Co. 77., pt. 10.
The Circuit Court of Linn County had jurisdiction of the subject-matter and of the parties. It had a right, therefore, to decide every question which might arise in the cause ; and whether its decision be correct or not, its judgment, until reversed, is binding on every other court. For fraud in obtaining the jurisdiction, relief can be obtained only in the court possessed of the original record. The court that rendered it may vacate its sentence, when obtained by imposition ; and this may be done even at a subsequent term.
But it is said in Singer v. Singer, 41 Barb. 139, and the language is cited with approval in the well-considered case of Nichols v. Nichols, 25 N. J. Eq. 65, “When a judgment of divorce has been acquiesced in for several years, and the plaintiff has again been married, some better reason than the gratification of personal feeling, or the desire to obtain a further sum of money from the plaintiff, should be made clearly to appear, before the court would be warranted in granting such an application. The ground on which such an order should be made would be one of public policy; but no such reason should suffice where, after acquiescence of both parties to the judgment for three years, an innocent person has been involved by marriage, and the opening of the judgment would involve her in distress and perhaps disgrace. This reason alone would be sufficient to justify me in denying the motion, if there were no other reasons for doing so, and leaving the parties to the consequence of their own acts. ”
The Circuit Court could not do otherwise than find for the defendant on the pleadings, and dismiss the bill. The principles which justify its judgment in this case are well settled by authority and long practice, and have never been disputed in Missouri. Grignon v. Astor, 2 How. 319; Amory v. Amory, 12 Am. L. Reg. (n. s.) 38; Wright v. Marsh, 2 Greene (Iowa), 111; Landes v. Perkins, 12 Mo.
The judgment of the Circuit Court is affirmed.
Rehearing
delivered the opinion of the court on a motion for a rehearing.
Counsel for the plaintiff in error moves for a rehearing, and, amongst other grounds, alleges that the principle upon which the cause has been decided is that a judgment can be attacked for fraud only in the court in which it was rendered ; that this principle has been abolished by the Code of Practice, which permits legal or equitable defences to be set up against a judgment, whether foreign or domestic, wherever and whenever such judgment is sought to be enforced, either as the basis of an original action, or when such judgment is pleaded in bar to an action. Counsel also complains that we have overlooked controlling decisions to that effect, of our own Supreme Court, cited in his brief.
The general equity doctrine is, that equity never attempts to act upon the court of law itself, and claims no supervising power over the proceedings therein. It acts solely upon the party. It never declares the judgment of a court of law void, but merely enjoins the parties from proceeding to enforce it. 2 Story’s Eq. Jur., sect. 1571. However, it is now held in Missouri, as well as in other States, that a judgment may be attacked and vacated for fraud, in a direct proceeding between the parties. Mayberry v. McClurg, 51 Mo. 256; Acock v. Acock, 57 Mo. 154; 38 Mo. 432. It has been said again and again in this State, both before, and since the adoption of the Code of Practice, that in the case of a domestic judgment, where there is no necessity of seeking a foreign tribunal, this can only be done in a direct proceeding. “When the court has jurisdiction, however erroneous or irregular its proceedings may be, they are re
So far as we are aware, it has never been expressly held in this State that, where jurisdiction is obtained, a domestic judgment may be attacked otherwise than by a direct proceeding in the court in which it was rendered. In Marx v. Fore, it was held by a divided court that a defence of want of jurisdiction and a fraudulent simulated appearance may be set up where the attempt is to enforce a foreign judgment. There, Judge Bliss, who delivered the opinion of the court, says : “I say nothing of other fraud, except that which would go to the jurisdiction. If that was obtained, the party may be required to attack the judgment where rendered. We will not compel a party to go to the situs of
Of course, a case cannot arise in which an action shall actually be brought upon a domestic judgment. And where a domestic judgment is set up in answer, as in the case before us, and the reply is that the judgment is void for fraud, if this be allowed, it must be on grounds entirely distinpt from those which led to the decision in Marx v. Fore and Ward v. Quinlivan. A foreign judgment may be attacked for fraud, when the attempt is made to enforce it, because the citizen should not be sent to a strange forum to assert his rights. At the time of these decisions, it had been settled by authority and long practice that if, on inspection of the record, it was found that the court had jurisdiction of the subject-matter and the parties, the judgment is conclusive ; and that for fraud in obtaining jurisdiction, or any fraud in the concoction of the judgment, relief could
It must further be remarked that the judgments that have been attacked in Missouri were money judgments, or judgments concerning exclusively the. property rights of the parties, and not their status. Marriage is a thing of status; and on the theory, which is undisputably the correct theory, that the decree of a court of equity operates upon the parties, and not upon the judgment itself, it is denied that this power of a court of equity can extend to a decree of divorce rendered by another tribunal. How is a court of chancery to act upon the parties without annulling the judgment? If judgments cannot be directly attacked and annulled for fraud by virtue of any superintending power of courts of equity, — and undoubtedly the rule in equity is that this cannot be done, — what relief can be given which warrants the setting up such facts as are pleaded in the replication in the present case? Will equity enjoin a man who is divorced by valid decree from setting up that his status is that of. an unmarried man ? or from saying that a woman from whom he is legally divorced is not his wife ?
It has been doubted by learned judges whether, under any circumstances, there should be any interference with the parties after the courts have granted a divorce. Scott, J., in Smith v. Smith, 20 Mo. 166. And the jurisdiction has been denied, from grounds of public policy, in cases of the grossest and most cruel fraud. Parish v. Parish, 9 Ohio St. 534; Greene v. Greene, 2 Gray, 361. Breaking up of
There can be no question whatever, we think, that the demurrer to the reply was properly sustained, and for the reasons briefly stated in the opinion already filed. If we have now gone into the matter more at length, and discussed the Missouri cases, it is owing to the peculiar nature of the proceeding, and because the position which we assume, though sanctioned by authority, and not, we believe, in disaccord with Missouri decisions, seems to be inconsistent with what has been said by Judge Adams in Ward v. Quinlivan, cited above. What fell from the lips of the learned judge in that case was, however, evidently meant to apply only to ordinary actions concerning merely proprietary rights. It might be a dangerous doctrine, applied to the pleadings in an action for divorce. If a decree for divorce is to be attacked, this should be done in some proceeding-instituted directly for that, and before the tribunal granting the decree, or by way of review in an appellate tribunal, and not by being made one of the issues in another suit.
It is, however, contended that the mere fact that the husband had already obtained a divorce is no bar to the court’s granting a like divorce to the wife, the object being to enable the court to make an ancillary decree securing- to the wife
It is claimed that the present petition is good as an application for alimony on the ground of abandonment. The courts, however, cannot grant alimony except as an incident to divorce. Doyle v. Doyle, 26 Mo. 545. There was a provision in our Divorce Act, as it once existed (Rev. Stats. 1845, p. 438, sect. 9), for making allowance to a wife unlawfully abandoned by her husband. But the section seems to have been omitted in subsequent revisions, and is not to be found in the present act. Nor, if it was, do we-see how that would help the plaintiff. The present proceeding is not for an allowance to a wife abandoned by her husband.
A decree of divorce, acquiesced in for years, where the husband has remarried, and is living with the second wife, would in no case/be opened on a mere question of alimony. The application for a rehearing is denied.
