108 Kan. 64 | Kan. | 1920
The opinion of the court was delivered by
On March 14,1918, Mary A. Rhodes brought an action for divorce agáinst R. 0. Rhodes, who waived the issuance and service of summons and entered a voluntary appearance, signing a writing to that effect which included an agreement that the case might be taken up and tried at any time without further notice to him. On March 31, 1919, the case was called for trial, and no response being made it was dismissed for want of prosecution. On April 10, 1919, at a new term of court the order of dismissal was set aside and upon a. trial the plaintiff was granted a divorce. She died on June 15,. 1919. - On July 20, 1919, the defendant moved to set aside the judgment on the ground that he had had no notice of the proceedings subsequent to the dismissal. The motion was resisted' by the administrator of the plaintiff’s estate and was denied,, the present appeal being taken from that ruling.
In view of the evidence and the findings of the trial court the following facts must be regarded as established: About February 1, 1918, the defendant, a resident of Kansas City, Mo., came to an attorney of Topeka and asked him to represent both parties in procuring a divorce, saying that he had no grounds for bringing such an action himself and desired one to be brought by his wife, who lived there and who had abundant basis therefor. An arrangement was then made, to which the plaintiff later became a party, that such an action was to be brought by the attorney, who was to appear upon the records as her attorney, while in reality representing the defendant as well, being authorized by him to do whatever might be necessary in order to obtain the divorce. A property settlement and the payment of alimony was agreed upon and the action was brought. Several continuances were had because of the defendant being unable to pay off a real-estate mortgage which by agreement he was to satisfy. The order of dismissal grew ■out of the fact that the plaintiff and the attorney were both sick at the time the case was reached, and neither had notice of
*68 “Independent of any other consideration, if the motion was properly made, and in due season, the court would order any judgment of divorce obtained by collusion or fraud to be set aside, not from any regard to the parties concerned, but from motives of public policy. In such a case, however, it should be made apparent, that the party so moving was acting from good motives, and not for any expected personal advantage.” (Singer v. Singer, 41 Barb. [N. Y.] 139, 140.)
“Upon the plaintiff’s own statement, she was a party to the perpetration of a fraud upon the court. She made an illegal agreement in order to secure the $1,000, which she alleges the defendant promised to pay her, and she now complains because of the defendant’s failure to pay the amount which he promised. The purpose of the plaintiff is purely mercenary. She was willing to be a party to the perpetration of the fraud upon the court, but, because the defendant has not paid her the money which he promised her, she. proclaims the fraud and asks a court of equity to set aside a judgment entered against her. The plaintiff is not in a position to invoke the aid of the court to relieve her from a situation in which, according to her testimony, she has -been placed by her own participation in the fraud' of which she now complains.” (Whittley v. Whittley, 111 N. Y. Supp. 1078, 1079.)
“The public, however, has an interest in the proper maintenance of the marriage relation, and public policy forbids that the parties shall agree to its dissolution or shall enter into any collusion to bring about that result. . . . But this writ of error is not sued out to restore the marriage relation. Death has prevented that. The sole reason for entertaining this writ of error after the death of Mrs. Mallory is in order that plaintiff in error may be restored to his statutory rights in the property left by her. ... We are of opinion that it would be inequitable and unjust to permit plaintiff in error to now prosecute this writ of error to a reversal of the decree for the sole purpose of permitting him to procure a share of that estate.” (Mallory v. Mallory, 160 Ill. App. 417, 423.)
“It is clear to us that the appellant, in making such motion [to vacate a decree of divorce], was not actuated by proper motives or proceeding in good faith. ... It was for her to make it appear that she was acting with good motives, and not from any increase of advantage that she hoped or expected to gain thereby.” (Wiemer v. Wiemer, 21 N. D. 371, 376, 377.)
The judgment is affirmed.