326 Mich. 415 | Mich. | 1949
Plaintiff William Hardy appeals from an order granting defendant’s motion to dismiss his bill of complaint on the ground of laches. He brought this suit against his 5 children individually, against one of them in her capacity as special administratrix of the estate of her deceased mother, and also against his 2 daughters-in-law. He asked that the divorce obtained from him by Amanda Hardy, now deceased, in 1928 be set aside and held for naught for lack of jurisdiction, and that the home originally held by the entireties but awarded
Plaintiff and Amanda were married in 1904. They had 5 children. She was adjudicated insane by the probate court for the county of Wayne in 1914 on plaintiff’s petition. He was appointed guardian and remained so until he resigned on June 28,1927, after a petition for his removal on the grounds of dissipation of her estate had been filed. Arnold Jacquemain was appointed as his successor. In November, 1925, plaintiff left his wife and family and took up his residence at 6022 Cadillac avenue, Detroit, at which address his pleadings in the instant case state that he has since remained.
A bill of divorce entitled, Amanda Hardy, by Arnold Jacquemain, guardian, v. William Hardy, was filed in the circuit court for the county of Wayne on August 15, 1927. Plaintiff had expressly made the entire file of the divorce case a part of the record before both the lower court and this Court. The bill of complaint in the divorce suit was signed by Amanda Hardy. She charged desertion, cruelty and nonsupport. Personal service could not be obtained despite the timely issuance of 2 alias summons and a pluries. The 4 different process servers all deposed that they were unable to locate William Hardy after diligent search. Statutory substituted service was resorted to, no appearance or answer was filed, and an order pro confesso was entered. At the hearing the testimony of Amanda, whom the court apparently believed sufficiently competent as it was cognizant of her adjudication, and also that of Joseph Hardy, adult son of the parties, clearly established the charges. The prosecuting attorney’s report in the divorce file shows that the juvenile court record re
Amanda was adjudicated sane by the probate court on April 6,1929, and lived in her homestead as an unmarried woman until her death on February 23, 1948.
Plaintiff claims that he first learned of the decree and its provisions in 1930, about l-l years after it was granted, when he obtained a copy. He commenced this suit on March 18, 1948, after 2 of his sons filed separate petitions for the probate of their mother’s estate. He contends that the divorce proceedings were null and void for lack of jurisdiction over his person and for want of jurisdiction in the court to entertain a divorce suit brought by an insane person by her guardian.
We need not decide these questions. Even if plaintiff’s contentions are correct, he has delayed too long before asserting his claim. Though a divorce be invalid for lack of jurisdiction over the person, the party seeking to have it set aside is prevented by estoppel or laches under the facts in this case. Livingston v. Livingston, 276 Mich 399, and the authorities cited therein; Zoellner v. Zoellner, 46 Mich 511. Plaintiff’s pleadings are devoid of any explanation of his gross procrastination. They contain nothing which would appeal to the equity and good conscience of the Court. This suit was commenced
Carlisle v. Carlisle, 96 Mich 128, contains an excerpt froxn Zoellner v. Zoellner, supra, which is equally applicable to the case at bar:
“ 'Nothing is xxow involved except property. The sole motive of the petitioner in assailing the judicial proceeding which purported to sever her connection with the deceased complainant is to get, through a kind of post 'mortem adjudication, a share of the property he'left: * The defects in the proceedings which are xxow set up were open to detection by the least attexxtion to facts which must have beexx obvious to her, and the xxotice from her husbaxxd, and the surrounding circumstances with'which she was intimate, were urgent calls upon her to look ixxto the proceedings. Ixx shox't, if her present explanations are correct, the facts of which she hád full knowledge implied conclusively that the decree was a fraud, and there is no' reason to suppose that she was xxot then as 'eligibly, situated, to take action -as she is now. * * * The proceeding-is-''consequently- subject'to the proposition that thq¡pxxblic peace axxd good order are concerned in withholding..the assistance of equity from’*420 those who grossly neglect to take care of their own rights.’ ”
The public order and welfare require that reliance may properly be placed on a decree of divorce which has remained unassailed for a long period of years after the complaining party knew about it. When death has overtaken one of the parties, the proceedings will not be set aside for other than exceptionally cogent reasons.
The order of the court below is affirmed, with costs to the defendants.
