108 Minn. 291 | Minn. | 1909
Lead Opinion
Plaintiff, claiming under Mrs. Higbie, deceased, brought ejectment in the latter part of 1906 to recover possession of a homestead and other lands in this state from defendant Pike, claiming under the will of Mr. Higbie, also deceased, and against other defendants in possession as her tenant. Mr. and Mrs. Higbie were married in New York in 1864, and shortly afterwards removed to Owatonna, Minnesota. Mr. Higbie resided there until his death, January 5, 1905. Mrs. Higbie came to Minnesota with her husband, but lived apart from him between October, 1877, and April, 1880, when she returned and lived with him until November 3, 1883, when she finally left him, and lived in New Jersey and New York, where she died in 1906. In 1886 Mr. Higbie initiated divorce proceedings in
Of these the first is whether the decree of the Dakota court was subject to collateral attack under the circumstances of this case. The rule is settled beyond peradventure that “a decree of divorce may be impeached collaterally in the courts of another state by proof that 1he court granting it had no jurisdiction ‘because of the plain
The second question is whether the divorce decree should be given legal effect, because of Mrs. Higbie’s conduct subsequent to it. That decree plaintiff insists was clearly void because, first, of fraud in the service of the summons; and, second, of the nonresidence in Dakota of both the plaintiff and defendant. In the view of the case we take, the second of these reasons only need be considered. It is decisive of the issues. Defendant places emphasis upon the fact that neither the cause of morality nor interest of the public is involved, since both parties are dead, and that this is a controversy about property interests only, to which principles peculiar to divorce proceedings should not be applied. They insist that the decree was voidable only, and that under the circumstances presented by this record it must stand.
None of the many authorities to which they have directed our attention justify this conclusion in letter or in spirit. In none of them were both the parties nonresidents of the state, the court of which granted the divorce. In all but one of them, after a summons had been duly served, and after proper proof had been adduced, and after all the required subsequent proceedings had been lawfully observed, a valid decree could have been entered. The proposition in which they fairly result is: Where a decree of divorce by a court within the jurisdiction of which the person seeking a divorce was a resident at the times involved is voidable only because of fraud in connection with the service of the summons or the conduct of the case, the victim of the fraud by unexplained delay lasting until after the death of the perpetrator of the fraud, or by other conduct operating as a waiver or estoppel, may be prevented from
Thus, in the leading case on the subject, Zoellner v. Zoellner, 46 Mich. 511, 9 N. W. 831, nine years’ unexcused delay, during which the plaintiff in the divorce proceeding had died, was held sufficient to validate the divorce, although the publication of the summons was secured by fraud and constituted an imposition on the court. In that case, however, the defendant lived in Ohio; but no question was raised that plaintiff lived in Michigan. If the defendant had appeared in the proceeding, a valid decree might have been entered. Defendant might have waived an improper service of summons by appearance. It was consonant with equity that her conduct subsequent to the decree constituted a waiver.
In none of the eases to which defendant has referred us, and we have examined them all, did it appear that the plaintiff was not a resident of the state in which the court granted the divorce. Some of them were cases of fraud in connection with the service of summons. Zoellner v. Zoellner, supra; Earle v. Earle, 91 Ind. 27; Everett v. Everett, 60 Wis. 200, 18 N. W. 637; Prewett v. Dyer, 107 Cal. 154, 40 Pac. 105; Evans v. Woodsworth, 213 Ill. 404, 72 N. E. 1082; Marvin v. Foster, 61 Minn. 154, 63 N. W. 484, 52 Am. St. 586. Indeed, in Maher v. Title G. & T. Co., 95 Ill. App. 365, there was “colorable jurisdiction.” At page 373, the court said: “The ■decree was not void for lack of jurisdiction of appellant’s person, nor because of a want of power” on part of the court to entertain an application for divorce and to proceed to a decree. The proceedings of the court were at the most erroneous. In Gilbert v. Keynolds, 51 Ill. 315, no notice had been served and no appearance entered. In Brigham, Petitioner, 176 Mass. 223, 57 N. E. 328, the charge was that evidence in the divorce proceeding had been suppressed by fraud and collusion. “The jurisdiction was undoubted and complete.” In Nicholson v. Nicholson, 113 Ind. 131, 15 N. E. 223, both parties were residents of the proper state. The fraud consisted of inducing the noninterposition of a defense. Promise to dismiss was broken. And see Lorimer v. Knoyle, 43 Nan. 338; Johnson v. Sharpe (Tex. Civ. App.) 34 S. W. 1006 (where the answer was filed by an attorney without the authority of defendant, then a nonresident) ; Arthur v.
Plaintiff insists that the divorce was an absolute “nullity, a mere brutum fulmen,” of no force whatever, and incapable of having any legal effect given to it. Both principle and authority are strongly persuasive of the soundness of that proposition. But if a defendant in such • irregular divorce had married, had had offspring, and had died after the death of the plaintiff, would a court bastardize the innocent children? Or if after the decree the defendant had attempted successfully or unsuccessfully to kill the plaintiff, and then died after his decease, would she transmit a right to his estate ? The question whether, under any possible circumstances of extreme aggravation, the subsequent conduct of the defendant in the divorce proceedings could validate the improper decree, or operate as an estoppel against one claiming a distributive share of the estate of plaintiff therein, it is not necessary to here decide. Eor, assuming that there might be such circumstances, the record now before us certainly does not disclose them.
In this case Higbie himself was guilty of deliberate fraud upon his wife and upon the court. The trial court found, and was justified in finding, that neither husband nor wife had at any time been a resident of or domiciled in the territory of Dakota or in the state of South Dakota, and that Mr. Higbie never had any bona fide intention of removing thereto, but went there temporarily for the sole purpose of instituting the divorce action. This was not “a mere irregularity.” A deliberate perjury as to a prerequisite to jurisdiction was involved. Mr. Higbie could not have come into equity with clean hands. Those claiming under him are in no better position.
It appears, however, that Mr. Higbie’s words and actions to his wife were brutal, and justified her in living apart from him, and that she notified persons engaged in buying land from Mr. Iiigbie that she was still his wife. She was not shown to have signed any deed as a single woman. The tidal court, indeed, found that she never, at any time after such pretended divorce, acquiesced therein, or held herself out as a single woman, but until the death of her husband at all times claimed to be his wife. She always insisted that the Da.kota divorce was a fraud. It necessarily follows that the judgment of the trial court must be and is hereby sustained.
In this view of the case it would be a work of supererogation to consider the merits of defendant’s further contention that judgment previously rendered in the probate court operated as an estoppel.
Affirmed.
Defendants’ motion for reargument proceeds on the express assumption that the original opinion herein was based on two points not presented nor argued. In point of fact, that decision rests on two simple and unmistakable propositions, elaborately argued orally and on briefs, on which the decision of the trial court rests, viz.: First, that the invalid Dakota divorce decree was subject to collateral attack; second, that the wife’s conduct subsequent to the decree did not operate to validate it. The opinion did set forth that a group of authorities in defendants’ brief sustained, not the proposition for which they were cited, but another which was there formulated, namely, that the conduct of a spouse, including laches, subsequent to the granting of a divorce decree invalidated by fraud in the service of summons or in the course of the trial, may estop representatives of such persons from claiming a distributive share in his estate. Defendants insist, however, that the cases to which reference will be immediately made sustain the position that delay for a sufficient period to attack a decree of divorce void because neither of the parties were residents of the jurisdiction rendering the decree may by estoppel prevent any question as to its validity.
We did not refer in the original opinion to In re Ellis’ Estate, 55 Minn. 401, 56 N. W. 1056, 23 L. R. A. 287, 43 Am. St. 514, because it does not purport at all to be of the class of cases to which the instant controversy belongs. There the divorce was obtained by collusion to confer jurisdiction. The divorced husband died. The parties to the controversy concerning his estate were his divorced wife, who alleged the invalidity of the decree, a woman whom he had married after the divorce, who asserted its validity, and a sister and a brother, claiming under the will. The trial court found for the second wife. This was affirmed. In the case at bar neither of the parties had married again. The intervening rights of third parties were not involved. Defendants themselves called our attention to the principle that the courts, in motions to vacate judgments, proceed with great caution and anxious care of the intervening rights of strangers. Black, Judg. § 320. Moreover, at page 410 of 55
“When, as between whom, and to wbat extent is such determination [of residence of the parties] binding in the state in which the parties are in fact residents? * * * First, in proceedings between the state of the parties’ actual residence and one of the parties; second, in proceedings between the parties in the state of their actual residence, where the divorce in the other state was procured on the application of one of them, the other not appearing in the action to procure it; third, in proceedings between the parties when both voluntarily appeared in the action in which the divorce was granted, and consented to the jurisdiction, or that the court might determine the facts on which the jurisdiction depended. In the second class of cases it was settled that a judgment of another state can be assailed on the ground of want of jurisdiction in the court to render it; the decisions have been practically uniform that the party who did not submit to the jurisdiction is not bound by the judgment.” The decision tends to sustain our original conclusion.
In Hurley v. Hurley, 117 Iowa, 621, 91 N. W. 895, it did not appear and was not found that the husband was a nonresident when he obtained a divorce. Moreover, the rights of third persons had intervened. In McNeil v. McNeil (C. C.) 78 Fed. 834, the opinion was oral and rested on the proposition that, “McNeil not having been a resident of the state for a year when he brought his suit for divorce, the court had no jurisdiction. This, however, is not apparent on the record; and hence the judgment cannot be said to be void on its face, and therefore subject to attack at any time.” This rule, as has appeared in the original opinion, is distinctly not the law, either in the federal courts or in this court.
For the first time our attention is now called to Reed v. Reed, 52 Mich. 117, 17 N. W. 720, 50 Am. 247. It fails, for a number of reasons, to support defendants’ contention. It suffices for the present to point out that the law in Michigan accords with the opinion previously expressed in the original opinion. In O’Dell v. Goff, 153 Mich. 643, 117 N. W. 59, the testator had obtained a divorce in Indiana from contestant’s mother. The undisputed evidence in the case proved that at this time the testator resided in Michigan,
Former opinion adhered to.
Dissenting Opinion
(dissenting).
I dissent. A careful consideration of the merits of this case, after reargument, leads me to the conclusion that a reversal should be ordered. The opinion of the court states all the facts, and the reasons for my conclusions are, in brief, as follows:
The judgment of divorce, though void in fact, was valid on its face, and a certified copy thereof was personally served on Mrs. Higbie many years before her death, yet she took no proceedings to have it set aside, and to this extent at least she acquiesced therein. If both parties had voluntarily appeared before the Dakota court in which •the action for divorce was brought and submitted to its jurisdiction, they would have been bound by the judgment, although the court, by reason of the fact that both were nonresidents, had no jurisdiction of the subject-matter of the action, the marital relations between them. In re Ellis’ Estate, 55 Minn. 401, 56 N. W. 1056, 23 L. R. A. 287, 43 Am. St. 514. If in such a case the parties conclude themselves by their personal appeaiance, it is a little difficult to see why a long-continued acquiescence by one of them, with full knowledge of a judgment obtained by a court of a state having no jurisdiction of the subject-matter, but valid on its face, would not be equally effective against him. Reed v. Reed, 52 Mich. 117, 17 N. W. 720, 50 Am. 247; McNeil v. McNeil (C. C.) 78 Fed. 834; Earle v. Earle, 91 Ind. 27.
In this particular case, the parties had resided apart for a long number of years; Higbie in Minnesota, and Mrs. Higbie in New Jersey. The divorce judgment was entered by the Dakota court in 1889, and the wife, though immediately served with notice thereof, permitted it to remain unchallenged, and never in any proceeding did she question its validity before her death in 1906, a period of
I am authorized to say that Chief Justice Start concurs in this view of the case.