112 So. 147 | Ala. | 1927
While it has sometimes been said that the state or the public is interested in every suit for divorce, and that courts in granting or denying divorces have regard for the public interest in a general sense (Spafford v. Spafford,
It may, like other judgments, be impeached at any time — barring laches, of course — at the suit of the injured party, by an original bill in the nature of a bill of review, on the ground of extrinsic fraud in the procurement of the decree. Ex parte Smith,
It is settled in this state, and by the weight of authority generally, that:
"A decree of divorce, though procured by the collusion of the parties, is not therefore void, and neither of the guilty parties is entitled as of right to have the decree set aside on that ground." Johnson v. Johnson,
The mere fact that the parties to this decree agreed between themselves that the complaining wife should have the custody of the children, omitting that issue from the bill and the decree, has no tendency to show a fraudulent or culpable collusion in the procurement of the decree of divorce, nor would the wife's failure to claim alimony have any such significance. But, in our view of the case, it could make no difference what facts were disclosed to the court — however significant of collusion they might have been, and however available in a proper proceeding for the avoidance of the decree. The decree of vacation was without authority, and should itself be vacated, as clearly appears from the petition and from the answer of the respondent. In such a case mandamus is the appropriate remedy to vacate the unauthorized decree, and to restore the decree wrongfully set aside. Ingram v. Ala. Power Co.,
Let the writ issue as prayed.
Writ granted.
ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.