88 Wis. 88 | Wis. | 1894
We do not deem it necessary to decide whether the circuit court was right in determining that the Ohio judgment of divorce was valid and binding. We are satisfied that the judgment in this proceeding was right and must be affirmed, for the reason that the final judgment of distribution of the estate made by the county court of G-rant county was conclusive and cannot be set .aside on the facts shown in evidence. The power of the county court to vacate a final order shown to have been procured by fraud is well settled in this state. Estate of Leavens, 65 Wis. 440. Such a proceeding is in the nature of a bill in equity to relieve against a judgment at law. The relief will be granted when the former judgment is inequitable, and the defendant was ignorant of the fact in question pending the former suit, or was prevented from making his defense by fraud, accident, or the acts of the opposite party, unmixed with negligence or fault on his part. Stowell v. Eldred, 26 Wis. 504; Tucker v. Whittlesey, 74 Wis. 74; Marine Ins. Co. v. Hodgson, 7 Cranch, 332. It is obvious that the ignorance of fact which will afford ground for relief must not be intentional or negligent ignorance; otherwise, a party might wilfully remain ignorant
First, then, as to the alleged fraud on the part of Mrs. Thomas. It is claimed by the petitioners that she deliberately concealed the fact of her prior marriage and divorce-in Ohio, and that the petitioners never knew of these facts until after her death; that this divorce was void, because-she had not resided in Ohio for a year prior to the decree, and that she knew this fact; that nevertheless she represented herself as the lawful widow of James Thomas in the proceedings to settle his estate, and thus secured the making of the final order assigning to her the whole estate. The difficulty is that most of these alleged facts are not proven by the evidence. The circuit court refused to find that Mrs. Thomas concealed the fact of her prior marriage to Lewis Magee, and the evidence entirely justifies that refusal. It is true the evidence shows that she resumed her maiden name after her brief dream of married bliss with-Magee was over and they had separated, but this is not unusual or unnatural. Aside from this circumstance, there is-no tangible evidence of concealment. There is absolutely no evidence of any denial or untrue statement as to her-former marriage or divorce made by her, or by any one to-her knowledge, either to petitioners or to any one else.. The evidence shows very clearly that it was common talk.
But it is said that Susan was guilty of a fraud in representing, during the settlement of the estate of James, that she was the lawful widow of James, when she was not such .in fact, because the decree of divorce from Magee was invalid. As we have before said, we do not deem it necessary to determine the validity of that decree. It is attacked on the ground that Susan had not resided for a year <in Ohio when the action was instituted, and much evidence, pro and eon, on this subject was introduced at the trial. It was the decree of a court of competent jurisdiction, and perfectly fair on its face. Susan undoubtedly believed it to be a perfectly valid release from her marital vows to Magee. Whether it was valid or not was a question of .law rather than of fact, and one of which Susan could not be expected to have any knowledge. Under these circum.stances, can it be called a fraud if she relied upon it, and, so ¿relying, stated that she was the lawful wife of James? We think not; and in the utter absence of any evidence showing any misstatements of fact, or any artifice or device to prevent investigation or to throw any persons inter•ested off their guard, we do not hesitate to hold that there was no fraud shown on the part of Susan in obtaining the final decree in the county court.
Having thus disposed of the alleged fraud, we come to the question whether there was such ignorance of fact on the part of the petitioners, without their fault or negli.gence, which entitles them to relief. We think this question must be answered in the negative. The sole question
The record of the Ohio divorce proceedings was objected to as not properly authenticated. We regard the authentication as sufficient.
The view we have taken of the case renders unnecessary any discussion of other questions. Upon the whole record we are satisfied that the judgment below was right.
By the Oourt.— Judgment affirmed.