184 So. 293 | Miss. | 1938
The appellant filed has bill of complaint in the Chancery Court of Bolivar County to obtain a decree of divorce from appellee and the custody of their two children. He made as an exhibit to the bill a certified copy of a divorce proceeding theretofore had in the Chancery Court of Quitman County wherein the appellee had obtained a divorce from him and the award to her of the custody of the children and alimony and attorneys fees. The exhibit affirmatively disclosed that the Chancery Court of Quitman County had jurisdiction of both the subject matter and the parties, it having been alleged, and in effect adjudicated, that their separation took place in said county and that the complainant in said proceeding was a resident citizen thereof. Sufficient grounds were alleged for obtaining the relief therein granted, *267 and the decree recited the taking of oral proof in support thereof.
When the present suit came on for hearing the appellee interposed a demurrer which was sustained by the court below. The appellant having failed to amend or plead further the bill of complaint was dismissed; and thereupon, the appeal here was granted to settle the controlling principles of the case.
The bill of complaint in the case at bar seeks to impeach the decree of the Chancery Court of Quitman County on the ground of alleged fraud perpetrated by the appellee on the jurisdiction of said court in that she falsely alleged that the separation occurred in Quitman County when in truth and in fact, as alleged in the present suit by appellant, it occurred in Webster County.
The decree sought to be impeached was rendered on the 6th day of October, 1936, upon five days personal service of process on the appellant prior to the convening of the term, and this suit was not filed until January 19, 1938. No facts are alleged seeking to excuse such delay, or to charge that the appellant was in any manner mislead as to what course would be taken when the former proceeding came on for trial. Moreover, it appears that the appellee has again married during the period of delay in filing of the appellant's suit. We assume this to be true for the reason that he sues her as Gertrude Bonner (Mrs. Fred) Houston. While we recognize the rule in this State to be that ordinarily a judgment or a decree which has been rendered because of fraud on the jurisdiction of the court may be impeached either by a direct or collateral attack, as held in the cases of Plummer v. Plummer,
Where a defendant has been served with notice for the time required by law of the pendency of the suit and is thereby afforded an opportunity to appear and raise the question of jurisdiction and fails to do so, but acquiesces in the judgment or decree for such length of time as to work prejudice to the rights of third persons who may have acted on the faith of the validity of such judgment or decree, courts of equity will frequently deny him relief therefrom. It is stated in 15 R.C.L. 745, under the subject of laches barring relief against judgments or decrees, that: "It is a time honored and salutary rule that when one is defrauded by the conduct or act of another, he must within a reasonable time after the discovery of the fraud proceed to have the matter corrected and if he does not do so, he is held to have acquiesced therein." The court should act upon equitable principles in the exercise of its discretionary powers, and independent of any absolute limitations by statute on the time within which a judgment or decree may be impeached, the right may be defeated by laches. 1 Freeman on Judgments, Secs. 271, 272; Griffith's Chancery Practice, Secs. 33, 41. And in discussing the requisites of a bill to impeach a decree in equity, it is stated in Griffith's Chancery Practice, Sec. 645, that it should be alleged that "the facts presently presented for relief were not known to the complainant at the time of the decree complained of or if known that he was prevented by fraud or its equivalent from presenting them." In Metcalfe v. Perry,
The present suit was filed after the period for appeal from the former decree had expired, but within the time allowed for a bill of review, but the statutes of limitations have no application to the doctrine of laches, and we see no reason why the principle above quoted should not be applied to the present suit under the circumstances. On the grounds of public policy, it was held in Hester v. Hester,
We are of the opinion that no ground for equitable relief is shown by the bill of complaint, when considered in connection with the exhibits attached thereto, and that the action of the court below in sustaining the demurrer was correct.
Affirmed. *271