Watts v. Watts

86 So. 353 | Miss. | 1920

Ethridge, J.,

delivered the opinion of the court.

The appellant filed a bill for divorce from the appellee in the chancery court of Lamar county, alleging that the appellant Avas a citizen of Lamar county, and that the defendant, when last heard from, Avas in the state of Alabama; that the complainant and defendant Avere married at Almedia, in the state of Alabama, on April 28, 1907, and lived together until February, 1918 ; that he, the complainant, was a model husband, but that the defendant treated him in a cruel and inhuman manner, and that he separated from her on account thereof; that he is not fully advised, but believes, the defendant Avas never divorced from her first husband. The bill did not set out the residence and post office address of the defendant, and the affidavit thereto did not state that diligent inquiry had been made to ascertain such post office address. On the filing of this bill publication Avas made for the defendant as a defendant Avliose post office address is unknoAvn. A decree of divorce was granted on the 17th day of June, 1919. On the 29th day of August, 1919, the defendant, Mrs. Susie Watts, filed her petition in the aboAre styled- and numbered suit to have the decree therein granted set aside for fraud practiced upon her and upon the court by the complainant in securing such decree of divorce, alleging that at the time of the filing of said, bill by. the complainant he well knew her address, and that she was living in the home of the complainant, and that both before and after the filing of the bill he was in correspondence with her, and sent her some money after the filing of the bill, but never let her know he contemplated a suit for divorce, but fraudulently concealed the same from her, and fraudulently kept a notice or summons from being mailed to her, as required by statute. That the allegations of the bill were false and fraudulent, and that the real reason for wanting the divorce was to marry a named person, with whom he had been maintaining adulterous relations; which person was then in trouble on account thereof, attaching a letter from said person, which letter disclosed said facts. This letter is a rather salacious document, reminiscent of past delights of illicit love and portentous of future trouble as the fruit thereof. The complainant filed a demurrer to the petition to set same aside for fraud on the ground, mainly, that the term of the court had adjourned at which the decree was rendered, and that the court had no power to act on said matter, except through an original bill in the nature of a bill of review, and that it could only set aside a decree for matters appearing on the face of the record after the passing of the term. • The chancellor overruled the demurrer, and granted an appeal to settle the principles of the cause.

The demurrer admits the truth of the allegations of defendant’s petition and the petition clearly shows fraud of the most vicious kind. It is settled law in this state that fraud vitiates a judgment. Harper v. Barnett, 16 So. 533; Cotten v. McGehee, 54 Miss. 621; Le Blanc v. I. C. Railroad Co., 73 Miss. 463, 19 So. 211.

We do not think it makes any difference whether the attack for fraud is made by original bill, or whether made by petition or by motion. The court looks to the substance of things, rather than to mere names, and will not permit a person practicing fraud to benefit by his fraudulent act.

Affirmed.