127 Minn. 406 | Minn. | 1914
This is an action to set- aside, as obtained by fraud, a judgment of divorce. Tbe decision was in favor of defendant, and plaintiff appeals from an order denying a new trial.
Tbe contention of plaintiff is that tbe finding of tbe trial court that there was no fraud in obtaining tbe judgment is not sustained by tbe evidence.
Tbe evidentiary facts upon which this finding was made are as follows:
Plaintiff and Elizabeth M. Kartak were married in St. Paul December 30, 1909; in September, 1910, they went to Grand Eorks, North Dakota, and began keeping bouse and living together in that city as husband and wife. Early in November of tbe same year plaintiff left bis wife and went to a hotel in tbe city to live. Some three weeks later be returned to her, and they lived together until Christmas day, 1910, when plaintiff again left. Tbe court finds that this was wilful desertion by plaintiff. January 27, 1911, plaintiff caused to be prepared by a lawyer in Grand Eorks a written agreement of separation, which was on tbe next day signed by plaintiff and bis wife. This agreement provided, in addition to tbe main features of separation, absolving each other from all claims by reason of tbe marriage relation, releasing tbe husband from all obligation to support bis wife, and arranging property matters, that plaintiff would pay tbe railway fare of bis wife from Grand Eorks to St. Paul, and tbe expenses of removing her personal effects to
It is claimed that there was fraud in not making further efforts to serve Kriha personally, and in concealing from the court the existence of the separation agreement. The first claim relates to the matter of invoking the jurisdiction of the court, the other to the merits of the cause of action.
But though it is conceded that the failure to disclose to the court the agreement of separation was intentional, this is not fraud or perjury which is ground for setting aside the decree. The complaint advised the defendant that his wife charged and would attempt to prove desertion. It is immaterial that he did not answer, or that in fact he did not know of the suit. The concealment of the separation agreement, if it was material evidence, and intentional, was at least no worse than would be the giving of false testimony as to
We find it unnecessary to discuss or decide whether plaintiff would be estopped to question tbe decree. We bold that it is valid.
Order affirmed.