244 A.D. 181 | N.Y. App. Div. | 1935
Plaintiff, the wife of the defendant, brought this action to recover alimony claimed to be due under a final judgment of divorce granted in the State of Nevada in 1931. The defendant contends that the Nevada judgment was obtained by plaintiff
Jurisdiction over the defendant having been procured through fraudulent representations, which induced defendant to appear in the Nevada action by attorney, the judgment of the Nevada court may be attacked collaterally. A judgment fraudulently obtained is not entitled to protection under the full faith and credit clause
The case of Abercrombie v. Abercrombie (64 Kan. 29; 67 P. 539) is directly in point. In that case the opinion of the court stated: “ The conduct, however, of the plaintiff in inducing and procuring the defendant to enter his appearance in said court is most reprehensible. The defendant entered into the agreement of settlement in good faith, and, as made, it was within the authority given by the plaintiff. * * * She induced him to believe this, and for this purpose, and no other, he was willing to submit himself to the jurisdiction of that court. * * * We have no hesitancy in saying that the defendant was induced by fraud and misrepresentations to enter such appearance in the Colorado court. It was as much fraud as if she had telegraphed or written him that one of their children was dangerously ill, for the purpose of inducing him to come to the state that she might secure service of summons upon
“ It has long been a rule of this court that where jurisdiction of a defendant has been obtained by fraud or wrong, he may appear in the action, showing such fraud, and the court will always grant relief. If this is true, can there be any well-defined distinction between permitting him to appear in the original action to show the fraud and in allowing him to set up such fraud in an action brought upon a judgment rendered in a case where jurisdiction of the defendant was obtained by fraud? Can a valid lawful act be accomplished by an unlawful means? * * *
“ The fact that the judgment sued on in this case is the judgment of a sister state can make no difference. It is only when jurisdiction is admitted that full faith and credit should be given to the judgments of a sister state. That the judgment of a sister state may be attacked collaterally, on the ground that jurisdiction was obtained fraudulently, is supported by many authorities.”
The respondent is not estopped from attacking the Nevada judgment, for, as was said by the trial court in Greenbaum v. Greenbaum (147 Misc. 411, 413): “Appearance by the plaintiff in the ' Nevada action does not estop her from challenging in this jurisdiction the decree of that State, for it is only the spouse who invokes the legal machinery of the foreign court which results in the decree under attack who may not subsequently be heard to question the validity of such foreign decree.”
In Gray v. Richmond Bicycle Co. (167 N. Y. 348) Judge Vann, writing for the Court of Appeals, said (at p. 355): “ The defendant expressly admits that ‘ even a foreign judgment may be successfully assailed for fraud in its procurement.’ * * * It was not necessary for the plaintiff to go into the State of Indiana and obtain relief from the judgment through its courts, for, as we have held, ‘ a court of one State may, where it has jurisdiction of the parties, determine the question whether a judgment between them, rendered in another State was obtained by fraud, and, if so, may enjoin the enforcement of it, although its subject-matter is situated in such other State.’ ”
It clearly appears, from the affidavits upon which plaintiff’s motion for summary judgment was heard, that the respondent was induced to appear in the Nevada action as the result of the fraud perpetrated upon him by plaintiff. There is no doubt that such appearance was the direct and proximate result of the plaintiff’s fraudulent statements. Without the defendant’s appearance, the purpose of the plaintiff could not have been accomplished. Had plaintiff disclosed the true facts, certainly the defendant
It thus appears that every necessary element of a defense of fraud is present in the case at bar.
The brief of the appellant overlooks the fact that the defense to the complaint is primarily based upon the fraudulently induced appearance of the defendant in the Nevada action. The appellant erroneously assumes that the defense herein is based solely upon the deprivation of the opportunity to interpose a known defense in the Nevada action. The fact of the matter is, the defendant knew of no defense to the Nevada action. The existence of such defense was fraudulently concealed from defendant. Had he known the facts he certainly would not have appeared in the Nevada action, and would have defended the same. Having induced an appearance by defendant, through fraudulent representations made by plaintiff, such fraud vitiated the result flowing from said action. In none of the authorities cited by appellant was the essential question of jurisdiction involved. Indeed, the cases cited by appellant recognize that the fraudulent deprivation of an opportunity to interpose a defense is a proper basis for a collateral attack up to the time such defense was unknown to defendant, or could not have been ascertained by reasonable diligence. Gardiner v. Van Alstyne (22 App. Div. 579), relied upon by appellant, expressly holds: “The fraud for which a judgment will be set aside is one in the concoction of the judgment.” In that case the court pointed out that the pleadings in the original action, filed by plaintiff who sought to set aside the judgment, showed knowledge of the alleged fraud at and prior to the original trial, and that without “ great diligence in
“ There was no suppression of evidence by the plaintiff in the former action, or ignorance on the part of the present plaintiff of any fact material to the controversy, and all the evidence which is now within his reach was produced Or might have been produced on that trial, and was equally competent then as now.”
I think the affidavits in this case clearly show a bond fide issue of fact which can only be disposed of at the trial.
The court at Special Term properly denied plaintiff’s motion for summary judgment, and the order appealed from should be affirmed, with twenty dollars costs and disbursements to defendant, respondent, against plaintiff, appellant.
Martin, P. J., McAvoy, O’Malley and Untermyer, JJ., concur,
Order affirmed, with twenty dollars costs and disbursements to the respondent.