24 Neb. 551 | Neb. | 1888
Plaintiff, by her guardian and next friend, filed her petition in the district court of Gage county, in which she alleged, in substance, that she was a resident of Colfax, Taylor county, state of Iowa, where she had resided more than twenty years last past; that on the 9 th day of September, 1857, she was the lawful wife of defendant, and had lived and cohabited with him as such from said date until about the first day of March, 1881; that about said time he willfully deserted her, without cause, and has not lived with her since that time; that on the 27th day of November, 1882, by the judgment of the circuit court for Taylor county, in said state, she was adjudged to be of unsound
To this petition defendants severally demurred. The-demurrer of Moses B. Wisdom was upon three grounds, as follows: “First — The court has no jurisdiction of the person of defendant. Second — There is a defect of parties plaintiff. Third — That said petition does not state a cause-of action against defendant and in favor of plaintiff.”
This demurrer was overruled by the court, and the defendant, declining to answer further, elected to stand upon his demurrer, whereupon the decree of divorce was set aside, that plaintiff might make her defense; to all of which defendant excepted. He now alleges error in this court, and seeks a review by proceedings in error.
It is contended by plaintiff in error that the proceedings in the district court were instituted under the provisions of section 602 of the civil code. This section, so far as it. may be deemed applicable to this case, is as follows:
“A district court shall have power to vacate or modify its judgments or orders, after the term at which such judgment or order was made. * * * Fourth — For fraud practiced by the successful party in obtaining the judgment or order.. Fifth — For erroneous proceedings against an infant, married woman, or person of unsound mind, where the condition of such defendant does not appear in the record, nor the error in the proceedings. * *
Upon the other hand it is contended by defendant in error that while- the section above named gives ample authority for the proceedings, yet that plaintiff is not limited thereto, that the common law right to institute the-action in vindication of her equities exists, and that the action may be maintained thereunder. Our attention will be directed only to the latter proposition.
A clear case of fraud is presented by these allegations. It also appears that Mrs. Wisdom was in no sense a party to> this fraud, but that Mrs. Knox not only had full knowledge of the fraudulent purpose of Moses B. Wisdom, but that she was an active party thereto.
The question now' presented has been examined and passed upon by a number of the courts in this country.
In Adams v. Adams, 51 N. H., 388, the question was examined, and in an exhaustive opinion written by Chief Justice Bellows it was held that courts of common law jurisdiction have power to set aside or vacate decrees of divorce, if obtained by fraud or imposition, as in the case of other judgments, and that they will exercise that power when such fraud is clearly established. A large number of authorities are cited in the opinion as sustaining the decision of the court, and many of them are carefully reviewed. The cases of Parrish v. Parrish, 9 O. St., 534, and Greene v. Greene, 2 Gray, 361, cited by plaintiff in error, are examined, and the court refuses to agree with the reasoning in Parrish v. Parrish, as being opposed both to’ principle and authority.
The case of Edson v. Edson, 108 Mass., 590, is in point. In the opinion of the court, written by Chief Justice Bigelow, the same conclusion is reached, and in discussing the question the chief justice uses the following language: “The statement of the question is of itself sufficient to make it apparent that, if there is no remedy by which judgments so procured to be rendered can be impeached and annulled, courts of justice may be made instruments by which the grossest frauds may be successfully accomplished, to the great wrong and injury of innocent persons.
In referring to the case of Greene v. Greene, supra, it is said that the decision in that case is not in conflict with the general accord of authorities. Some of the general expressions used by the court, when disconnected from the facts of the case then in adjudication, have been thought to give sanction to the doctrine that a decree of divorce when once obtained could not be impeached in any form or mode of procedure, or set aside by one of the parties to the original suit, however fraudulent and collusive may have been the conduct of the other part)- in its procurement. But such a conclusion is not a fair or legitimate result of the language and- reasoning of the court, when considered .as it should be, solely with reference to the actual case before the court for decision.
The same rule is declared in Young v. Young, 17 Minn., 181, which is a case similar in some respects to that pre.sented by the petition before us. And to the same effect -see Allen v. MacClellan, 12 Penna. St., 328; Johnson v. Coleman, 23 Wis., 452; Borden v. Fitch, 15 Johnson, 121; Gechter v. Gechter, 51 Md., 187; Holmes v. Holmes, 63 Me., 420; as well as cases cited in the American and English Encyclopædia of Law, Vol. 5, pp. 844, 845.
Iu Holmes v. Holmes, above cited, and other cases which we do not now call to mind, it is held that the fact that the party obtaining the divorce had contracted a new marriage after the entry of the decree, and before any proceedings were commenced to set it aside, would not destroy the .authority of the court to vacate the decree.
We are not embarrassed by these conditions in this ease, for there are no children by the second marriage, and if the allegations of the petition are true, which must be assumed, Mrs. Knox is in no sense an innocent party and can claim no rights as such.
The protection of society demands that divorces should not be granted for light or trivial causes, much less should our courts be opened for the entry of decrees procured by the fraud and deception of plaintiffs, by which rights of innocent parties might be destroyed, with no redress for the wrong committed.
We think the decision of the district court on the demurrer was correct, and it is affirmed.
Judgment affirmed.