Hall v. Hall
123 N.Y.S. 1056
N.Y. App. Div.
1910
Check Treatment
Laughlin, J.:

The plaintiff and defendant were married at the city of Cheyenne, Wyo., on the 5th day of October, 1908. The action is brought to annul the marriage on the ground that on the 8th day of April, 1896, at White Piver City, Col., the defendant lawfully married one Howell Jones, who is still living, and that a decree of divorce, claimed to have been obtained by her from Jones on the 29th day of September, 1908, in the county of Jefferson, Col., was obtained on constructive service of the summons by publication without personal service; that Jones did not appear or.file an answer in the action, and judgment was taken against him by default; that said decree of divorce was void upon the ground that the court did not obtain jurisdiction over the defendant in the action, and that, therefore, the marriage remains in full force and effect. The plaintiff, who claims that his marriage was void, had the burden of showing not only that Jones was alive, but that the divorce was void. (Code Civ. Proc. §§ 1743, 1745, 1753; Tiffany Dom. Rel. 41; Campbell v Campbell, 90 Hun, 233; Patterson v. Gaines, 47 U. S. [6 How.] 550, 597. See, also, Stokes v. Stokes, 198 N. Y. 301.) The answer put in issue the allegations of the complaint with respect to. Jones having been alive at the time of the marriage of the plaintiff and. defendant, and with respect to the validity of the defendant’s divorce obtained in Colorado, and alleged that the court in Colorado obtained jurisdiction over the subject-matter of the action and over the parties thereto. The learned court at Special Term found that the decree of divorce in Colorado was duly granted by the County Court of Jefferson county, which obtained and had jurisdiction over the parties and the subject-matter of the action, but found that the defendant herein “ practiced gross fra.ud upon the Court of the State of Colorado * * * by stating in her verified application for an order of service by publication that she had no definite information with regard to the change of residence ” of her *122husband, Howell Jones, “ except that he was going to South America;” whereas in.truth and in fact she had been informed by Jones that he was going to Eio Janeiro, Brazil, and that she believed him to be then Residing at Eio Janeiro, and concealed, such knowledge from the court. The undisputed evidence- shows, not only that the defendant married Jones in the State of Colorado, but that their only matrimonial domicile was in that State, and that they were both residents of that State at the time the defendant obtained the decree of divorce on the ground that her husband had without just cause deserted and failed to support her for a period of more than one year immediately preceding the commencement of the - action. The. County Court of Jefferson county, Col., was authorized to grant decrees of divorce pursuant to the laws of the State, which authorized a divdrce on the ground and on the facts upon which it was obtained and on service tiy publication. There can be no question but that the court in Colorado had jurisdiction both over the subject-ra'atter of the action and over the parties, ands as has been seen, the trial court herein has so found. It is our duty, therefore, to give the decree full faith and credit. (Atherton v. Atherton, 181 U. S. 155 ; Harding v. Harding, 198 id. 317; Haddock v. Haddock, 201 id. 562.) The plaintiff offered no evidence tending to show-that Jones was alive at the time of Iiis marriage to the defendant. The only evidence on that subject was given by the defendant, who testified on her direct examination- that “the-last time I saw or "heard of Howell Jones was in the fall of 1903, at which time he told me he was going to South America, Eio Janeiro, Brazil.” She was not .cross-examined on this point. Ho issue of fraud in obtaining the divorce was tendered by the plaintiff, nor was' the complaint amended.

. The learned trial justice inadvertently fell into error in. attempting to adjudicate upon an issue of fraud which was not presented by' the -pleadings, and" has granted a judgment which adjudicates that the defendant is still the wife of Jones. Moreover, the evidence does not warrant a finding that the defendant perpetrated a .fraud upon the court in Colorado or upon Jones. The defendant in her action in Colorado verified a formal application made in the name of- her attorney, and subscribed by him as a complaint under our practice, to the court for an order ■ for service of the summons *123by publication, in which it is stated “ That the last time she saw the said defendant he advised her that he was about to go to South America, and that he did not give this plaintiff any more definite information than that with regard to his contemplated change of residence.” The verification of this application is that she has heard it read “'and knows the contents thereof, and that the same is true to the best of her knowledge, recollection and belief.” The defendant on the trial of this action also testified on her direct examination that she personally, mailed a published copy of the summons in her action for divorce, which was given to her by her attorney in that action to her husband, addressed “Howell Jones, Bio Janeiro, Brazil,” and on the envelope she wrote, “If not called for, return to Frances Jones, Golden, Colorado,” and that it was never returned. This is the only evidence on which the finding of fraud has been predicated. Tier admissions alone could not afford a basis for a decision that her divorce was void (Code Civ. Proc. § 1753), and here there is nothing to show that when she verified the application for an order for tlie service of the summons by publication she remembered more definitely than- was stated in the application what her husband informed her with reference to where he was going. Her testimony is consistent with her entire honesty in her said application to the court, and it is susceptible of, and should, in view of the fact that the question of fraud was not at issue, receive .the construction that after obtaining the order for service by publication she recalled that her husband stated that he was going to Bio Janeiro, and, on the advice of her attorney, mailed the copy of the printed summons as published to him there. Moreover, the order for service by publication recites that the plaintiff in the action brought on the application in person and by her attorney, “and upon examination the court doth find that plaintiff 1ms known nothing whatever as to the whereabouts of the defendant for a period of four years last past; that after diligent search she is unable to ascertain his present whereaboutsthat plaintiff appears to have a meritorious cause of action, and that she has in all respects acted in good faith in these proceedings.” Section 2115 of the Bevised Statutes of Colorado (1908) required that the court or judge examine the plaintiff on the application with respect to her knowledge concerning the whereabouts of her husband. The presumption is that this *124duty was performed, and the reasonable inference from the recitals in -the order is to the same effect.- Moreover, the recital in the order that she has known nothing as to his whereabouts for more than four years is entirely consistent with her testimony given on . the trial of this action, and' is also consistent with her having then' informed the judge that-her husband said that he was going to Bio Janeiro, which, being in South America, merely supplements' her formal application with greater definiteness. But on his statement • to her, as she now gives it, there was no presumption that Bio Janeiro was her husband’s address at the -time the application was made to the court nearly -five years "after her husband made the statement to her, and it was for the court to determine whether or not a copy .of the summons should be mailed to her husband: ' (Rev. Stat. of Col. [1908] § 2115.) It does not appear what evidence she gave or statements she made on such examination. It may be that she testified or stated as she has testified here with respect to the information she had on the subject of her husband’s whereabouts. The judge evidently was of opinion that, since she had heard nothing within four years,-there was no necessity of attempting to communicate with him by mail. She . may have suosequently mailed the summons for greater precaution, and in the hope and expectation perhaps that her husband would appear in the action, so that there might be no question with respect to the validity of the divorce. The order made by the court merely required service by publication. If a definite present post-office address of the defendant-had been discovered the court would doubtless, as it was authorized, have required that a copy of the summons be mailed to the husband at such address as was provided in attachment cases when an affidavit is filed which gives “ the post office address of the defendant.” (Rev. Stat. of Col. [1908] §2115; Code Civ. Proc. off Col. § 45.)

It is well settled that a judgment rendered in our own or in' a sister State or in a foreign country may be attacked collaterally for want of jurisdiction, or for fraud perpetrated upon the court or upon one of the parties to the action ; and Folgee; J., in writing for the court in Hunt v. Hunt (72 N. Y. 217, 227); states the rule with respect to the nature of the fraud as follows: “ But the fraud in such case is made up of the same constituents as is fraud in any *125other case, and the same state of facts must appear which is required in other cases. There must be fraudulent allegations and representations designed and intended to mislead, with knowledge of falsity, and resulting in damaging deception.” So far as Jones is concerned, it does not appear but that lie had full and timely knowledge of the pendency of the divorce action, and, therefore, there is not á scintilla of evidence that any fraud was perpetrated upon him, or that he was deceived; and, as already observed, there is no evidence that the court was deceived. Mor is there any evidence that any fraud with respect to the validity of the divorce was perpetrated on the plaintiff herein.

Moreover, a stranger to a judgment can only impeach a judgment collaterally for fraud when it injuriously affects him. In Brownell v. Snyder (122 App. Div. 246), relied upon by the learned court at Special Term (67 Misc. Rep. 267), the liability of a surety on an undertaking given on appeal in an action followed the affirmance of the judgment, and, of course, he could resist liability on the ground of fráud and collusion resulting in the affirmance. Here the plaintiff and defendant both resided in Colorado and they first met there.. At that time .plaintiff knew that defendant was married. Mo fraud was committed against him. He wanted to marry her, and to authorize that it was necessary that she obtain a divorce. He understood that she obtained it, The divorce may be voidable, but it is not void for her fraud, nor could she avoid it on that' ground. Her former husband, if living, may avoid it for her fraud, but he had not done so. If it should be duly annulled, the plaintiff may then be in a position to maintaih an action to annul his marriage to the defendant, but he has no standing to avoid it for fraud, because he is not injuriously affected by it; but on the contrary, by virtue of it, he got just what lie then wanted. (Ruger v. Heckel, 21 Hun, 489; affd., 85 N. Y. 483; Kinnier v. Kinnier, 45 id. 535.)

It follows, therefore, that the judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

Ingraham, P. J., McLaughlin, Soott and Dowling, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to. abide event.