Lead Opinion
This is an action for partition wherein it is sought to vacate in part a final decree of distribution entered in the county court of Cass county. The defendant Louise G. Knight has appealed from a judgment rendered in favor of the plaintiff .and the remaining defendants, awarding partition and setting aside, in part, such final decree, and from the order of the trial court denying a new trial, with leave to file an amended answer.
There is little dispute upon the facts. This appeal involves, practically, questions of law alone. In substance, the facts are as follows:
The appellant was married to one Bonfoey, in Michigan in 1883. In August, 1903, the husband, Bonfoey, instituted an action for divorce upon the ground of desertion in the superior court of Los Angeles county, California. The appellant admitted service and made no answer or appearance in such action. On September 25, 1903, the divorce action came up before, and was submitted for decision to, the court in California. On September 30, 1904, the judge of the California court made and signed an interlocutory decree, which provided that, upon the expiration of one year from and after the entry of such interlocutory decree, a final decree should be made dissolving the bonds of matrimony. On October 9, 1905, the appellant, age stated thirty-nine years, was married to one Elmer Gordon, age stated forty-four years, by the judge of the superior court of San Diego county, in the city of San Diego, who certified that he believed the facts stated in the marriage license to-be true, and that there appeared no legal impediment to the marriage. On November 30, 1909, said Elmer Gordon died in San Bernardino county, California, from accidental causes. On January 19, 1910, the appellant pursuant to a marriage license issued in Orange county, California, was married to the deceased, Suel II. Knight, age stated seven
On April 18, 1918, pursuant to an application made, the trial court permitted the plaintiff to file an amended and supplemental complaint. In this supplemental complaint many of the facts hereinbefore stated are alleged, and it is further alleged that the appellant was never the wife of said deceased, but that she was and for many years had been the lawful wife of said Bonfoey; that the plaintiff and the other children of the said deceased did not ascertain such fact until within six weeks prior to the filing of such supplemental complaint; that the proceedings had in the county court and with relation.to such estate were so had upon the belief of the parties interested that said appellant was in fact the wife of said deceased. Such complaint therefore prayed that the final decree of the county court be set aside to the extent that it awarded to said appellant such interest as the widow of the deceased, and that it be decreed that the children of said deceased be the only heirs and the ones entitled to the entire estate; that, further, such children be determined to he the owners in fee as cotenants of the real and personal property of the estate; that furthermore such children recover judgment against the appellant for the moneys paid to her, some $9,902, out of such estate, and that partition of the real and personal property be had as provided by law. To this supplemental complaint the defendants, other than the appellant, interposed an answer admitting all the allegations thereof and asking for judgment as demanded therein. To such supplemental complaint the appellant interposed a second separate answer denying specifically the allegations therein contained concerning her status as the widow of the deceased. In such answer the appellant specifically alleges that she procured an absolute divorce from said Bonfoey, in the superior court of Los Angeles county, California, which ripened into a final decree and judgment of divorce, and that such judgment is now in full force and effect. That furthermore the county court of Cass county had full jurisdiction and entered a final decree of distribution in the estate of the deceased pursuant to which the appellant became entitled to the distributive share therein mentioned. The action herein, upon these issues, came up for trial in the district court in October, 1918. Upon the trial it was shown that an interlocutory decree hereinbefore mentioned in the di
This nunc fro iunc divorce decree was secured upon a showing made to the California court by said Bonfoey tb the effect that his attorney inadvertently failed and neglected to cause to be entered the final decree of divorce at the expiration of one year from the entry of the in-, terlocutory decree.
On November 20, 1918, the trial court in this action made findings through which judgment was ordered, setting aside the final decree of the county court so far as it awarded the distributive share of the estate to the appellant, granting to the children of the deceased the right to recover from her some $8,215 received by her from the estate, and ordering a partition of the property. Pursuant thereto judgment was entered on November 26, 1918. Thereafter in January, 1919, the ap-, pellant made a motion for a new trial, among other things, upon grounds of newly discovered evidence and for leave to file an amended answer. IJpon such motion there was presented to the trial court a new, amended final decree of the California court, dated December 11, 1918, which directed the entry of a final decree of divorce nunc fro tunc as of the date of October 4, 1905, and recites therein that such court did after the expiration of one year from the entry of such interlocutory decree, to wit, on or about the 4th day of October, 1905, sign a final order and decree in and conformative to such interlocutory decree, but that the same was through inadvertence not presented to the clerk, and not entered by the clerk of the court, and has become lost. This amended decree was secured upon a showing made through the affidavit of Lizzie Parmer, the sister of the appellant; that such sister called upon the judge of the California court, who heard the divorce action and who advised her that he had signed the final decree and that everything requisite in the matter had been done. Also the affidavit of said Bonfoey, to the effect that he asked his attorney in such divorce action if the final decree had been procured, and that he was advised that the final decree
The action was tried to the court apparently as an equity action. All the evidence offered was received. The appellant demands a trial de novo and specifies some twelve alleged errors. It is the contention of the appellant that, upon the showing made before the trial court for a new trial, the amended judgment of divorce is a valid judgment; that it .could be validly entered nunc pro tunc; that there is a sufficient showing of a final decree of divorce in fact, having been pronounced valid as a judgment even though not entered and filed by the clerk of the California court; that the respondents in this action are seeking to collaterally attack a judgment of the county court of this state duly entered.
The respondents contend that the record upon which the judgment herein was secured affirmatively shows no valid judgment of divorce granted to the appellant; that likewise upon the showing made by the appellant for a new trial the amended judgment of divorce then presented shows no valid judgment of divorce existing at the time the final decree of distribution was made or prior thereto. That furthermore, under the decisions and the law of California, no valid judgment could be rendered in a divorce action until it had been, in fact, filed and entered; that the amended judgment of divorce could not operate retroactively to destroy or affect the rights of the respondents herein; that the judgment of divorce, as. amended or otherwise in the California courts, was subject to collateral attack, being void on its face, at least so far as the rights of the respondents herein are concerned, and that
In Sjoli v. Hogenson, 19 N. D. 92, 122 N. W. 1008, court stated: “The decree of distribution is an instrument by virtue of which heirs receive the property of the deceased. It is the final determination of the rights of the parties to a proceeding, and, upon its entry, their rights are thereafter to be exercised by the terms of the decree. There is another reason why the final decree of distribution in the estates of deceased persons must be held conclusive. Under our probate system, all deraignment of title to the property of deceased persons is through the decree of distribution, entered as a final act in the administration of an estate, whether testate or intestate. No one will contend that this decree can be made by any other court, or in any other proceeding. It
The action of partition is in the nature of a chancery action, cognizable under equity powers. 20 Cyc. 170; McArthur v. Clark, 86 Minn. 165, 91 Am. St. Rep. 333, 90 N. W. 369. It is true that the plaintiff, upon his supplemental complaint, seeks to avoid this final decree of distribution by the exercise of the equity jurisdiction of this court to vacate the same upon grounds of mistake, but nevertheless the main purpose of the action is for partition pursuant to a final decree of distribution which respondents seek to revise, and which they claim the right to revise in determining the title of the parties in such proceeding.
The respondents, by this action of partition, invoke a form of action and a proceeding which cannot precede, but must follow and be pursuant to, the final decree, for the evident reason that the deraignment of title to the property of the deceased must be through the decree of distribution. It is apparent from this entire record that if any legal wrong or mistake has been accomplished with reference to the divorce proceedings in California, it has occurred by no acts or mistakes of the parties themselves, but by the acts of the court or of its officers, including the attorneys who are officers of the court. It is further clear that all of the parties to this proceeding, including the deceased, the father of the respondents, have always acted -upon the assumption and belief that the appellant was in fact the wife of the deceased, and not living in adulterous relations with him. It is also clear that in California, at various times, legal action has been taken upon the theory that the appellant and said Bonfoey were in fact divorced. The California court so recognized when it certified and permitted the appellant to marry one Gordon. It likewise so certified when it permitted the appellant to marry the dc-
Dissenting Opinion
(dissenting). I dissent. This is a civil action originally started for the purpose of securing a partition, but upon the subsequent discovery of some facts indicating that one of the defendants, Louise G. Knight, had not procured a final decree of .divorce from her former husband, Bonfoey, an amended complaint was filed, asking, first, that the decree of the county court finding her entitled to a distributive share of the estate of Suel H. Knight be vacated and set aside on account of the mistake; and, second, that the property be partitioned among the heirs according to their respective interests as alleged in the complaint. The majority of this court holds that the action seeking relief from the judgment of the county court on the grround of mistake is a collateral attack on the judgment, and, apparently, the holding is based upon the fact that additional relief in the shape of partition is asked for. It may be observed, too, that while the majority deny the relief sought from the judgment of the county court on the sole ground that it is linked with a prayer for partition, the judgment of this court directs a partition to be had according to the same final decree of distribution. Whether or not it is intended that this decision shall be res judicata as to the right of the parties hereto to bring a wholly independent action in the district court to set aside the decree of the county court on the ground of mistake does not appear in th'e opinion. It is singular that the complaint in this action is dismissed, in so far as it purports to state a ground for relief from the judgment of the county court, on the technical ground that there is linked with it a prayer for
The majority, having disposed of this case on what seems to me to be a procedural technicality, have found it unnecessary to discuss the merits of the issues raised by the pleadings and presented on the record relative to the personal status of Louise G. Knight, as the widow of S. H. Knight, and the propriety of granting relief from the decree of distribution entered in the county court upon the ground of the mistake made, if any, in relation to such status. I am disposed to determine the case on the merits of the issues presented; but since the majority of the court is not so disposed, it is obvious that an expression of an individual opinion on the merits of the case is unnecessary and beside the point which is thus made controlling.
The complaint purports to state a cause of action for relief from the final decree of distribution, according to which the majority opinion has directed distribution to be made. Section 8809, Compiled Laws of 1913, provides that an action to set aside a decree directing or confirming a sale or otherwise disposing of the property of any estate may be instituted and maintained at any time within three years of the discovery of fraud or other ground upon which the action is based. The complaint in the action characterizes it as an action to set aside a decree on the ground of mistake. This court held in Fischer v. Dolwig, 29 N. D. 561, 151 N. W. 431, 39 N. D. 161, 166 N. W. 793, that this section authorized proceedings in the nature of equitable actions to vacate or set aside judgments of the county courts on equitable grounds after the time had expired for the correction of errors by motion or appeal. It has also held that the county court had no such equitable juris
. The principle according to which complete relief is administered in an action is especially applicable where partition is asked for, because in such a proceeding it is important that when the partition is awarded it will result in placing each party in possession of his own proper share. “Hence,” says Cyc. quoting from Freeman, Cotenancy & Partition, § 505, “when a suit for partition is in a court of equity or in a court authorized to proceed with powers as ample as those exercised by courts of equity, it may be employed to adjust all the equities existing between the parties and arising out of their relation to the property to be divided.” 30 Cyc. 230. Or, as is said in Pomeroy, 6 Pom. Eq. Jur. § 717: “It is characteristic of equity in matters of partition that not only does it afford a more advantageous and adequate relief than is obtainable at law, but it also takes into consideration the various and, diverse equities of the respective parties growing out of their ownership
But, says the majority, this proceeding constitutes collateral attack on the judgment of the county court. But they indicate that if that portion of the complaint which asks for partition be stricken out so that it would stand as a mere complaint in an action to vacate, seeking but the single relief, it would not be collateral. The term “collateral attack” is certainly one to conjure with. I cannot understand by what process of logic or reasoning an attack which, when singly stated, is direct, becomes collateral by the circumstance of having an added prayer for consequential relief attached to it. To further test the conclusion of the majority, suppose the action to partition had been brought by Louise G-. Knight ( ?), the heirs of S. H. Knight being made defendants, and an answer alleging the mistake embodied in the final decree of distribution had been interposed by the heirs. This, certainly, on the assumption that the mistake is one authorizing relief, would constitute an equitable reason for denying the plaintiff the relief sought in the complaint. But yet, under the majority holding, the court would be powerless to entertain it because of the magic that would make the statement of such equitable circumstances in an answer in a partition suit a collateral attack upon the judgment. The court would thus be driven by the irresistible logic of its conclusions in this case, not only to deny relief to the defendants according to the equitable circumstances stated in the answer, but it would also be compelled to decree a partition in favor of the plaintiff. Can it be possible that equitable procedure has degenerated to the extent that it renders the court helpless to arrest the
The-authorities cited by the majority do not support the conclusion. An examination of them discloses that they are cases where it was attempted to impeach a judgment by facts dehors the record and without pleading such facts as constituting a cause for interfering with it. The case of Shane v. Peoples, 25 N. D. 188, 141 N. W. 737, is cited. The complaint in that case was before the court on demurrer, and the primary holding is that the complaint' is vulnerable; that it is lacking in equity. In what is said subsequently it must be borne in mind that the court was dealing with facts insufficient in equity to constitute a ground for relief from the judgment. Reference to the briefs in that case shows that counsel for the appellants conceded that if the proceedings for the sale of real estate in probate court be regarded as proceedings in rem, they were out of court. The court decided that the proceedings were in rem. In view of the pleading and counsels’ concession, there was only left to the plaintiff a collateral attack on what was apparently a valid judgment. Of course this could avail them nothing. The briefs further disclose that the action was brought long after the three-year limitation provided for in § 8809, Compiled Laws of 1913, had run. But I bring to the aid of the majority the case of Kavanagh v. Hamilton, 53 Colo. 157, 125 Pac. 512, Ann. Oas. 1914B, 76, which is an authority apparently in point in support of the majority opinion. It will be noticed that one of the principal contentions in the case was that the judgment of the county court was void. It also appears that the judgment which was attacked had stood for over fourteen years, so that the court’s conclusion that the judgment was being attacked collaterally would probably have been the same had the court considered the attack as being direct.
Van Elect, in his work on Collateral Attack, § 3, says: “A collateral attack on a judicial proceeding is an attempt to avoid, defeat, or evade it, or to deny its force and effect in some manner not provided by law. . . . When a judicial order, judgment, or proceeding is offered in evidence in another proceeding, an objection thereto on account of ju- ■ dicial errors is a collateral attack. Eamiliar instances are where a person relies on a judgment as a justification for a trespass . . . or to show his right or title in . . . ejectment, trespass to try title, or
The essence of this definition is that any attack in some manner not authorized by law is collateral. Judgments may be attacked on account of errors committed in prior proceedings, the usual course of correcting such being by motion for a new trial, appeal, or writ of error. These are not only direct methods of attacking judgments upon these grounds, but they are practically exclusive. Judgments may also be-attacked when equity requires that they should not be enforced because of the existence of facts which bring the matter within equitable cognizance, and which render their enforcement inequitable. This is direct attack upon equitable grounds, such as is contemplated in § 8809. Fischer v. Dolwig, 29 N. D. 561, 151 N. W. 431, 39 N. D. 161, 166 N. W. 793. The case of Bergin v. Haight, 99 Cal. 52, 33 Pac. 760, affords a good illustration of a direct attack upon a judgment of a probate court in an equitable action to quiet title. The court said (page 55) : “It is claimed by appellant that this is a collateral attack upon the orders of the probate court, and that since the record of the proceedings shows that the court had acquired jurisdiction, and that the proceedings were upon their face regular, the order confirming the sale cannot be thus attacked. It is true the court did acquire jurisdiction to administer upon the estate, and to order and confirm the sale of the property; but it does not follow therefrom that this is a collateral attack. The attack is a direct attack upon the sale, on the ground of fraud, and as such is authorized by law. Yan Fleet, Collateral Attack, pp. 4, 5, 15, and authorities cited. It is not every species of fraud, however, which may be the basis of an action to vacate an order or judgment. To be actionable, as stated by our chief justice in Pico v. Cohn, 91 Cal. 129, 13 L.R.A. 336, 25 Am. St. Rep. 159, 25 Pac. 970, 27 Pac. 537, it must be a ‘fraud extrinsic or collateral to the questions examined and determined in the action. . . .’ ”
Before the attack can be considered collateral it must, wdthin all the authorities, be an unauthorized attack; that is, one recognized as lawful. It frequently happens that one against whom a judgment is entered in a given court has cause to have the judgment vacated. The customary mode of vacating a judgment is by application to the court in -which the judgment is entered, setting forth the grounds recognized
From what has been said it is not to be assumed that the writer of this opinion entertains views opposed to giving full force and effect to judgments regularly entered by courts possessing the requisite jurisdiction. His views on this subject, as expressed in Fischer v. Dolwig,
The writer is in full accord with the views above expressed, but thev do not apply to a situation in which the statute law of the state recognizes the right of parties affected by a decree of the county court to bring an action to set aside the same upon equitable grounds within a limited time. This is a remedy given in addition to appeal and is as direct as the appeal itself would be, and at the-same time more comprehensive than an ordinary appeal (see O’Barr v. Sanders, 113 Ark. 449, 169 S. W. 249) because not limited to errors appearing on the record.
Wholly aside from the question of collateral attack, the decision is erroneous for the reason that the procedural question is not here for decision. It is undisputed that the complaint alleges the facts relied
For the foregoing reasons I respectfully dissent from the majority opinion. I regard it as the manifest duty of this court to decide the case on the merits of the issues presented by the pleadings and in the record. ... -
Concurrence Opinion
I concur not only on the grounds above stated, but also on the ground that appellant was the wife of deceased.
Dissenting Opinion
(dissenting). The purpose of this action as stated in the amended complaint is: First, to set aside the decree of distribution; and, second, to partition certain real property. No objection was made in the court below on the ground of misjoinder. It is undisputed that if the facts are as alleged in the complaint and found by the trial court, and the laws of California are as respondents assert, then the appellant was not the wife of the deceased, Suel II. Knight, and the decree of distribution was founded upon a mistake of fact. In my opinion the facts in the case and the laws of California are as contended for by respondents, and the appellant never in fact became the wife of the deceased, Suel H. Knight. Nor do the majority members express any opinion to the contrary. As my brother Birdzell has so well pointed out, they ignore the merits and dispose of this important litigation solely upon procedural grounds. I fully agree with him in his criticism of the majority opinion. Added force to that criticism has been given by the majority members themselves, as, since the decision in this case was filed and pending the time allowed for filing petition for rehearing, they have held that a decree of distribution may be vacated by an action solely on the ground that the county court made a mistake of law in distributing property, — a mistake apparent on the face of the proceedings and which could readily have been corrected by appeal. See Moore v. Palmer, infra, 174 N. W. 93.