State ex rel. Sparrenberger v. District Court
214 P. 85
Mont.
1923
Check Treatment
MR. CHIEF JUSTICE CALLAWAY

delivered the opinion of the court.

According to allegations in the record, which, for the purpose of this application, we must assume to be true, relatrix *503and Charles P. Sparrenberger, hereinafter referred to as the wife and the husband, were married in 1902. Two children, now living, were born to them. The matrimonial domicile was in New York in 1910, at which time the husband deserted his wife and the children. He came to Montana, established a residence here and in 1916 began an action against his wife for divorce upon the ground of desertion. Summons having been returned by the sheriff, with return indorsed to the effect that the wife could not be found in Custer county or in the state of Montana, the husband made and filed an affidavit in the cause as a basis for its service by publication, in which he falsely and fraudulently recited that the wife last resided in the city of Philadelphia, Pennsylvania which was her last known postoffice address, the fact being that he well knew that his wife did not then reside, and had not at any time resided, in Philadelphia. He well knew his wife was then residing in the city of New York, knew her city address, and in fact, during the period of time when he was applying for a divorce in Custer county was communicating with his wife and their children. Upon the affidavit, publication of summons was made in accordance with the statute and a copy of the summons and a copy of the complaint in the action were mailed to the wife at the city of Philadelphia. She did not receive these papers nor did she have any knowledge of the publication. In due time the court heard the proofs in the action and entered a decree dissolving the bonds of matrimony theretofore existing between the husband and wife, restoring each “to the status of a single, unmarried person,” according to the wording of the decree, which was dated in December, 1916. In 1918 the husband removed to North Dakota, where he has ever since resided. The wife did not learn of the decree of divorce until about the month of October, 1920.

The wife has at all times retained her residence in New York. In July, 1922, she commenced an action in the district court of Custer county for the purpose of setting aside and *504annulling the decree. In her complaint she alleged the foregoing facts, among others. It is conceded that her complaint states facts sufficient to warrant the relief sought. Summons was placed in the hands of the sheriff but he returned it with his certificate that he was unable to find the husband in Custer county or in the state of Montana. Thereupon an affidavit for publication of summons was made and filed in behalf of the wife, in which it was recited that the husband resided outside of the state of Montana and in the town of Beach, North Dakota. Order of publication was made by the court, summons was published in a proper newspaper and was personally served on the defendant in the town of Beach. That the statute was complied with in form is' not questioned. The husband seasonably appeared specially in the cause for the purpose of moving the court to set aside and vacate the service of summons. Argument was had upon the motion, and the court after careful consideration sustained it and refused to proceed further. Thereupon the wife made application to this court for the issuance of a writ of supervisory control; the object being to annul the order of the district court of Custer county in quashing the summons, and to procure an order directing the district court to proceed with the action.

Fraud being the arch enemy of equity, a judgment obtained through fraud practiced in the very act of getting it will be set aside by a court of equity upon seasonable application. Indeed, the power of a court of equity to grant such relief is inherent. (Clark v. Clark, 64 Mont. 386, 210 Pac. 93; 15 R. C. L. 760, 762.) The conscience of the chancellor moves quickly to right the wrong when it is shown that through imposition practiced upon the court by a litigant an unfair advantage has been gained by him and thus it has' been made an instrument of injustice. (15 R. C. L. 761; Dowell v. Goodwin, 22 R. I. 187, 84 Am. St. Rep. 842, 51 L. R. A. 873, 47 Atl. 693.) This is conceded by learned counsel for the husband, but his contention is that in the ab*505senee of personal service of summons upon the husband this action cannot be maintained because, neither party being now a bona fide resident of this state, the marital status of the parties “which constitutes the res of the action is not before the court.” This is said upon the theory that this action is in equity, and as “Equity acts in personam and not in rem,” and, as there is no res upon which to act, the court may not proceed upon merely constructive service, that giving no jurisdiction. Counsel’s assertion is too restricted. The power of equity has been extended so as to permit it to act in certain cases which are strictly in rem (16 Cyc. 134), one of which is the action for divorce.

The matrimonial domicile of the parties never was in Montana. It was in New York, and as the husband deserted the wife there, he did not bring it with him to this state. (Atherton v. Atherton, 181 U. S. 155, 45 L. Ed. 794, 21 Sup. Ct. Rep. 544 [see, also, Rose’s U. S. Notes]; Haddock v. Haddock, 201 U. S. 562, 5 Ann. Cas. 1, 50 L. Ed. 867, 26 Sup. Ct. Rep. 525.) But he established citizenship here and under the settled law that all governments possess inherent power over the marriage relation, its formation and its dissolution, as regards their own citizens, this state had the right to adjudicate upon his marital status. (Maynard v. Hill, 125 U. S. 190, 31 L. Ed. 654, 8 Sup. Ct. Rep. 723 [see, also, Rose’s U. S. Notes]; Haddock v. Haddock, supra; Parker v. Parker, 222 Fed. 186, 137 C. C. A. 626.)

The divorce action which the husband commenced in Custer county was a proceeding in rem (Black on Judgments, 2d ed., sec. 803), the res being the marital status of the husband (Ellison v. Martin, 53 Mo. 575; Haddock v. Haddock, supra). The court had jurisdiction over the person of the husband who brought the action, and it had at least a colorable jurisdiction over the subject matter of the action. Through fraud and by perjury which smells to heaven the husband tricked the court into entering a decree severing the marital bonds *506■which bound husband and wife together. The fraud was upon the court as well as upon the wife.

That the court had jurisdiction to act upon the record before it is not questioned. The decree which'the court gave the husband is fair upon its face; and while, under the doctrine of Haddock v. Haddock, in view of the fact that the matrimonial domicile of these litigants was in New York, the decree is not entitled to obligatory enforcement in the courts of a sister state by virtue of the full faith and credit clause of the Constitution, nevertheless it will be accorded full faith and credit by a great majority of the states upon the principle of state comity. (Mr. Justice Brown, in Haddock v. Haddock, supra, p. 624.)

By reason of the fraud practiced by the husband, the wife did not receive a copy of the complaint and summons in the action. Before she had any notice of the fact that a decree of divorce affecting her had been given by a Montana court, the husband had removed to North Dakota. When the action was filed, the sovereign state of Montana summoned her to come into its courts to defend an action brought against her. Oblivious as she was of the pendency of the action judgment went against her. Before she ascertained what had befallen the year went by in which she might have asked to set ’aside the judgment. (Sec. 9187, Rev. Codes 1921.) She was then forced to come into a court of equity. (State ex rel. Thompson v. District Court, 57 Mont. 432, 188 Pac. 902.) She came, in the language of that case, into a court which has full authority to afford her relief upon a proper showing, and is met with the argument that the res upon which the court acted is no longer within its jurisdiction. The husband, a fugitive from the matrimonial domicile, came into Montana, by fraud induced its courts to take jurisdiction of his marital status, and now flouts the jurisdiction he fraudulently invoked. An answer to this argument which satisfies the judgment and conscience of the court is that, when the husband came into Montana, became a citizen *507here, and induced the court to inquire into and adjudicate upon his matrimonial status, the court then had jurisdiction of the res, to-wit, that status. Through the affirmative action of the husband there was created another res, of which our courts have jurisdiction; that is, the judgment of the court dissolving the bonds of matrimony between the husband and the wife. (Everett v. Everett, 22 App. Div. 473, 47 N. Y. Supp. 994; 32 Cyc. 468.) That decree is of record in the court. It is a vital thing which deprives the wife of her marital status in so far as Montana is concerned, and which may deprive her of that status in many other states of the Union. It is mere sophistry to say that thing—that res— which has so forceful an existence has no existence. To do so is to recognize a fiction, that the res does not exist, and, as observed by Mr. Justice Holmes in the Haddock Case: “Fiction always is a poor ground for changing substantial rights.”

The plaintiff has come into a Montana court seeking redress for the wrong done her through its action. If she cannot obtain relief from this false judgment in Montana she cannot obtain it anywhere. “The cause of action arose in this state, for the fraud was committed here if anywhere. The record of the judgment is in this state, and must be canceled here, if it is to be canceled at all. Nowhere else can full and adequate relief be afforded, and the departure of the wrongdoer should not be allowed to defeat it. This jurisdiction cannot be denied without rendering the courts powerless to get rid of judgments which fugitives have procured from them by fraud.” (Everett v. Everett, supra.)

This is not an argument ab inconvementi. On the contrary, it presents the direct question whether a court whose wrongful action is induced by the fraud of one litigant is powerless to relieve the other, an innocent victim of its power. In Edson v. Edson, 108 Mass. 590, 11 Am Rep. 393, it is said: “We believe it to be an established principle of jurisprudence that courts of justice have power, on due pro*508ceedings had, to set aside or vacate their judgments and decrees, whenever it appears that an innocent party without notice has been aggrieved by a judgment or decree obtained against him without his knowledge, by the fraud of the other party.” (Johnson v. Coleman, 23 Wis. 453.)

In Moyer v. Koontz, 103 Wis. 22, 74 Am. St. Rep. 837, 79 N. W. 50, commenting upon the Johnson Ca,se, the court said: “Under the rule # * * there would seem to be no doubt that a wife might bring suit in our courts to annul a decree of divorce there entered, and confer jurisdiction by substituted service, in accordance with our statutes therefor; but it would be for the reason that the purpose of the suit was to adjudicate and act upon her status in relation to her absent husband, just the -same as if she was suing for divorce.” The words “just the same as if she were suing for divorce,” we think, were used with reference to the wife’s status in relation to her absent husband only, and do not imply that the wife must have had all the residential qualifications required of one suing for a divorce in order to seek relief from the fraudulent judgment, as counsel suggest.

Based upon the words last quoted, counsel for the husband here argue that the wife might maintain this action, if she were to come to Montana and gain a residence here. Such a requirement would appear to be futile. Before one may commence an action for divorce in this state he must have been a resident here for one year next preceding the commencement of the action. But we do not know of any other ease wherein a like residence is required before one may appeal to our courts for relief. But here the wife is not seeking to dissolve the marital status; she is asking to maintain it. She is not seeking to change her actual status, for, the divorce being void in fact, her status has not in truth been changed. She simply asks the court to declare as a fact what in truth exists, but which a' record, fair upon its face, but false in fact, denies—the marriage. And when the court strikes from the record that which fraud placed there, that object will have been attained. Where one, a citizen, invokes *509the jurisdiction of the court to adjudicate upon his status and by fraud induces it to enter a decree to the injury of another, the court having jurisdiction over the subject matter in the first instance will assert the authority of maintaining jurisdiction over it in order to right the wrong done. The wife has come voluntarily into the courts of this state, has submitted herself to the jurisdiction of the court of Custer county in the action which she has brought, and must necessarily abide the result of what the court does in that action. She is attacking the thing which is vital to her status as a married woman in this and possibly in other states, and it will not do to say that there is no res upon which the court can act. The judgment being the res, the district court of Custer county has as much jurisdiction and power to proceed as it had when, at the application of the husband, it in form dissolved the matrimonial status upon constructive service. Any other conclusion would sacrifice substance for form, fact for fiction, permitting fraud to prevent the administration of public justice. The law respects form less than substance (sec. 8757, Rev. Codes 1921), and for every wrong there is a remedy (sec. 8752, Rev. Codes 1921).

In the language of Lord Chief Baron Pollock in Rogers v. Hadley: “Fraud cuts down everything. The law sets itself against fraud to the extent of breaking through almost every rule, sacrificing every maxim, getting rid of every ground of opposition. The law so abhors fraud that it will not allow technical difficulties of any kind to interfere to prevent the success of justice, right and truth.” (Variously reported in 9 Law Times Reports, 292, 9 Jurist, 898, 32 L. J. Exch. 248.)

We compliment respective counsel for the learning, ability and fairness they have displayed in presenting this cause.

Let the’ writ issue.

Writ issued.

Associate Justices Cooper, Holloway, Galen and Stare concur.