Whetstone v. Whetstone

31 Iowa 276 | Iowa | 1871

Day, Ch. J.

— I. We will consider the errors presented in the inverse order of their assignment. As a bar to the plaintiff’s action of divorce, the defendant pleads a former decree of divorce obtained by him against the plaintiff. The plaintiff replies that the jurisdiction in the suit prosecuted by defendant was obtained by fraud.

This is not an attempt to impeach collaterally the Guthrie county decree. It is made the basis of the defendant’s defense. He interposes it as a reason why plaintiff should not recover. The plaintiff says the decree is fraudulent, and that, therefore, she should not be precluded by it. When a foreign judgment is made the basis of an action it may be shown that it was obtained by fraud. In Dobson v. Pearce, 1 Duer, 144; S. C., 12 N. Y. 165, the same principle was applied to a domestic judgment. In Rogers v. Gwinn, 21 Iowa, 58, which was an action on a foreign judgment, to which the defense was interposed that it was obtained by fraud, Dillon, J., said: “ If the judgment sued on had been rendered by a court of Iowa, the facts found by the court below would be a good defense, at least in equity, to an action upon it, or sufficient to require a court of equity, upon petition filed for that purpose, to cancel it.” Here is a recognition of the doctrine that, in an action in this State, upon a domestic judgment, fraud in obtaining the judgment is a good defense. It is now the settled law, both in the federal and State courts, that in an action upon a foreign judgment, the judgment debtor may successfully defend by showing that the attorney who entered an appearance for him had no authority to do so. Harshey v. Blackmarr, 20 Iowa, 172, and eases cited. In that ease, alluding to the fact that many decisions hold, that in a suit or a direct action upon a domestic judgment rendered against a party by an unauthorized appearan.ee by an attorney, the party cannot plead his ignorance of the suit, and the attorney’s want of authority to appear for him, the court said: “ It may be doubted whether the above distinction between foreign and domestic judgments is fully settled ; and if so, whether it rests on sound principles. Is not the gravamen the same in the one case as in the other, and does it not consist in the unauthorized act of the attorney ? We deem the rule properly settled as to foreign judgments. Why should it not equally apply to an action on a domestic judgment ?” But, whatever reasons there may be for the distinction in cases where the unauthorized act is that of the attorney alone, we apprehend no valid ones exist when the judgment is obtained by the fraudulent act of the plaintiff.

The case of Dobson v. Pearce, above referred to, was an action in a court of New York upon a judgment rendered in that State, and it was held that fraud in procuring it was a good defense to an action thereon.

That a party will be relieved from the consequences of a jurisdiction obtained by fraud or violence, see the following cases: Wells v. Gurney, 8 Barnw. & Cress. 769; Lutten v. Benin, 11 Mod. 50; Wingate v. Insley, 12 Pick. 270; Barlow v. Hall, 2 Anst. 461; Loveridge v. Plastow, 2 H. Black. 29; Lyford v. Tyrrell, 1 Anst. 85; Ex parte Wilson, 1 Atk. 152. More directly in point is the case of Loyd v. Munsell, 2 P. Wms. 74, cited in The State of Michigan v. Phœnix Bank, 33 N. Y. 22. In that case the plaintiff brought a bill to redeem certain property which the plaintiff' claimed as having been obtained under a decree in his favor. The bill alleged that the defendant, before obtaining said decree, procured a man to make a false affidavit that the plaintiff in this action was gone beyond seas, upon which the defendant got an order from the court that a service on the then defendant’s clerk in court be good service; whereas, in fact, the defendant was then living publicly in the next town, but on this false affidavit, and the order made thereon, the cause was heard exjocvrte, and confirmed absolutely, upon which decree the party so moving foreclosed, and the estate was obtained. The defendant (the party so obtaining this decree) set up in his defense, in his plea, this report and decree of the court, both made absolute, signed and enrolled. The lord chancellor said: “ All these circumstances of fraud ought to be answered, which, so far from doing, the defendant only pleads that report and decree as a bar, which the plaintiff seeks to set aside; and the decree being signed and enrolled the plaintiff has no other remedy; and if those matters of fraud laid in the bill are true, it is most reasonable that the decree should be set aside.” In that case, as in this, it was objected that the decree should be set aside by original bill. To this his lordship said: “ Such a gross fraud as this was an abuse on the court, and sufficient to set any decree aside.” Upon the same point see Kennedy v. Daly, 1 Sch. & Lef. 355; Dunlap v. Codey, ante, 260.

Now, if the facts alleged in this replication be true, what good end is to be subserved by driving the plaintiff to the district court of Guthrie county, there to proceed by petition in equity to relieve herself from the effects of a decree fraudulently obtained against her, thus delaying her in the prosecution of her own action, involving her in additional expense, and creating a multiplicity of suits? It appears from the statement of the case that the petition of plaintiff was filed, and the notice placed in the hands of the sheriff for service, long before the defendant commenced his action in Guthrie county. Suppose that the notice had actually been served, and that, notwithstanding that fact, the defendant commenced an action in Guthrie county and obtained a decree upon a false affidavit as to the non-residence of plaintiff, would that decree be so sacred and conclusive that the plaintiff must stay her proceedings until she could, by direct proceedings in the Guthrie district court, procure it to be set aside ? And, if not so conclusive in that case, why in this ? The plaintiff’s action was, in fact, com-, menced long before that of the defendant. Rev., § 27M. We are of opinion that the facts set up in the replication maybe inquired into in this action, and that, if found true, the facts alleged in defendant’s answer do not bar the plaintiff’s action.

II. This determination, in effect, disposes of the remaining alleged errors. It follows from the foregoing views that the court did not err in refusing to dismiss the plaintiff’s action. And, as the plaintiff is entitled to try the ' issues presented by the pleadings, it was proper for the court to grant her an allowance to aid her in the further prosecution of the cause.

Affirmed.