23 Wis. 452 | Wis. | 1868
This action is brought by a widow against the personal representatives of her deceased husband and the heir at law, to have a judgment of divorce adjudged and declared to be void and of no effect.
If the matters stated in the complaint are true — and upon this demurrer we must assume they are — then it is evident a gross fraud was practiced upon the court in obtaining the divorce. The ground of the divorce was stated to be desertion on the part of the plaintiff, continued for more than one year; whereas, it is alleged that the separation was voluntary, under written articles entered into by the husband and wife. Farther, it appears from the complaint that the husband commenced the divorce suit, and obtained an order of publication, upon the
A further objection taken to the complaint is, that it does not set out way prima facie valid decree, but sets forth a record which shows that the court had no jurisdiction to enter the judgment of divorce. It seems to us that this objection is not valid. It is true, if the court never acquired jurisdiction of the defendant in the divorce suit, she would not be bound by that judgment. But it is not a fair construction of the allegations of the complaint to say that they show that the judgment was void upon its face. The want of jurisdiction rather appears from extrinsic facts dehors the record. And that judgment may be a serious impediment to the plaintiff in obtaining her dower in her husband’s estate. The time for appealing from the judgment of divorce elapsed befóle the plaintiff became aware of its existence.' Her remedy by appeal was, therefore, gone. It is possible the judgment would have been set aside upon motion, on the ground of a want of jurisdiction. Ætna Life Ins. Co. v. McCormick, 20 Wis. 265; Weatherbee v. Weatherbee, id. 499. But we can see no substantial objection to the practice of instituting a suit in equity for that purpose. It seems quite as suitable a method to review the questions involved, and to adjudicate upon the rights of the parties, as would be afforded by a motion. Mr. Justice Stohy says that there is no doubt of the jurisdiction of courts of equity to grant relief against a former decree, where the same has been obtained by fraud and imposition; and that this must be done by an
The demurrer to the complaint was properly overruled.
By the Court. — Order affirmed.