Beck v. Beck.
| Decision Date | 30 December 1933 |
| Citation | 192 N.E. 791,48 Ohio App. 105 |
| Parties | Beck v. Beck. |
| Court | Ohio Court of Appeals |
Appeal and error - Divorce decree reviewed upon same basis as other judgments - Petition to vacate is in nature of application for new trial - Filing of petition to vacate amounts to abandonment of former action, when - Petitioner is estopped from invoking jurisdiction of another court, when - Defendant cannot accept beneficial rulings and reject the burdensome when.
1. A divorce decree may be vacated or reviewed upon the same basis as any other judgment.
2. A petition to vacate a judgment is not an independent proceeding but a special proceeding in an action to affect a judgment rendered therein and is in the nature of an application for a new trial.
3. A defendant, by petitioning to vacate a divorce decree and praying for leave to answer therein, submits himself to the jurisdiction of the court, and will be estopped from invoking the jurisdiction of another court, even though the action in the latter court was commenced prior to the filing of the petition to vacate, which amounts to an abandonment of the former action.
4. Where a defendant files a petition to vacate a judgment and for leave to file an answer, and the court acts favorably thereon, he cannot accept that part which is to his benefit and reject that part which he considers burdensome.
Court of Appeals for Tuscarawas county.
Messrs George & Leasure, for plaintiff in error.
Mr George D. Klein, for defendant in error.
The present controversy marks the second journey of these litigants to this court. The narrative of their first pilgrimage may be found in Beck v. Beck, 45 Ohio App. 507, 187 N.E. 366. The query now presented for review is indeed an anomalous one, and a full recital of the proceeding is necessary for an understanding thereof.
Velma Beck commenced this action in the Court of Common Pleas of Coshocton county on September 28, 1931. Its purpose was to procure a divorce and an allowance of alimony. On January 6, 1932, a divorce was granted and alimony allowed. In April of the year 1932, Edgar Beck, the plaintiff in error, commenced an independent action in Coshocton county to vacate and set aside this judgment for fraud, and prayed for leave to file his answer and make a defense to the Coshocton county divorce action. The Coshocton county court dismissed his petition. This court on May 13 1933, reversed the judgment of dismissal, vacated the judgment, and remanded the cause with instruction to permit the plaintiff in error to file his answer therein as prayed for.
On May 31, 1933, Velma Beck moved for an allowance of temporary alimony, and on June 15 thereafter the plaintiff in error filed an affidavit of prejudice as against the resident trial judge. This matter was treated as an application for a change of venue, which the trial court sustained on June 29, and thereupon certified the case to the Court of Common Pleas of Tuscarawas county. And on July 18, 1933, Edgar Beck filed a motion in that court objecting to the jurisdiction of that court to hear the case. The grounds stated in support of this motion are five in number, all of which pertain to the question of no service having been made upon him as prescribed by law.
On November 3, 1931, Edgar Beck commenced an action for divorce in Ashland county, which had been submitted to the trial court in that county prior to the filing of the motion attacking the jurisdiction of the Tuscarawas county court. Thereafter on July 7, 1933, the Ashland county court granted a decree of divorce to the plaintiff in error. Two further facts should be here referred to. First, the plaintiff in error in the Ashland county court was represented by different counsel. Second, the transcript of the Ashland county divorce action is an exhibit attached to the record in this proceeding, from which it appears that the defendant in error was personally served with summons issued to the sheriff of Coshocton county. This is at least the recitation of the transcript of docket entries. We do not find any such summons and return among the original papers. The original papers do contain two summonses issued to the sheriff of Muskingum county, each of which recites that Velma Beck was not found. Velma Beck was in default for answer or demurrer to this suit and did not enter her appearance therein. She had been summoned as a witness. It does not appear that she answered this summons or appeared at trial. The decree recites, however, that she had been personally served with summons and a copy of the petition, or by publication.
On August 4 the plaintiff in error filed a supplement to his objections previously filed attacking the jurisdiction of the Tuscarawas county court. The reasons therein advanced are the prior adjudication in Ashland county of all matters litigated or that might have been litigated, and that the decree of that court is therefore res judicata of the things herein further attempted to be litigated.
Thereafter on November 27 the court overruled the plaintiff in error's motion, and sustained that of the defendant in error for temporary alimony. It is from these rulings that error is now prosecuted.
In the proceeding previously determined by this court the matter of conflict of jurisdiction between the Coshocton and Ashland county courts was not in issue, but it was then deemed proper to indicate this court's view in that it might be helpful to counsel. We therefore concluded that opinion with this suggestion:
The defendant in error has relied upon this suggestion, even to the point that she did not enter the Ashland county court to raise the question of its jurisdiction. She does not now question this court's judgment in its reversal of the decree of divorce. On the other hand, the plaintiff in error says that he never abandoned Ashland county as his battle ground, that he never filed his answer in this suit, and that he diligently prosecuted his action in Ashland county. In other words his prayer for leave to answer was but a gesture to entice the court to vacate the decree of divorce, and he then intended what he has since performed, that is, to accept that part of this court's judgment which was favorable to him and reject that part thereof which he considered burdensome. As we now see it, the plaintiff in error, in view of his present claims, takes the position that this court was previously in error in all it did, and he favorably comments on the trial court's reluctance in following this court's direction or suggestion as to jurisdiction. We, therefore, feel constrained not to attempt to vindicate, but will re-assert our former suggestion and our reasons therefor.
For many years it has been considered that Parish v. Parish, 9 Ohio St., 534, conclusively settled in this state, by virtue of the then statute and public policy, that "a decree from the bonds of matrimony, although obtained by fraud and false testimony, cannot be set aside on an original bill filed at a subsequent term." This was an original bill in chancery in which the jurisdiction of the court entering the decree over the person of the litigants was not in issue. The statute (Curwen, p. 991) then provided that "no appeal shall be obtained from the decree, but the same shall be final and conclusive." This statute has since been repealed, but upon the theory of public policy, as late as Bay v. Bay, 85 Ohio St. 417, 98 N.E. 109, decided February 6, 1912, Parish v. Parish was approved. The case of Fritz v. Fritz, 9 O. D. (N. P.), 275, 6 N. P., 258, is of interest in that it comments on the broad holding of the Parish case.
We would call counsel's attention to the fact that the Constitution of this state was amended in numerous particulars in 1912, and was on September 3 adopted by the people, as amended. Section 6 of Article IV now reads in part:
"The courts of appeals shall have * * * jurisdiction * * * to review, affirm, modify or reverse the judgments of the courts of common pleas, superior courts and other courts of record within the district as may be provided by law, * * *."
The people did not see fit to except from that mandate a judgment of divorce, although they were well acquainted with the theory of public policy and the previous sanctity of divorce decrees. We do not have the temerity necessary to write such an exception into the Constitution.
In Zonars v. Zonars, 101 Ohio St. 518, 130 N.E. 943, the court considered the finality of a divorce decree in so far as the right to have it reviewed in a proceeding in error was concerned, and it was held that it might be reviewed. A decree of divorce, its finality and sanctity, was placed upon the same basis as any other judgment. In other words the court recognized that the old theory of public policy could not endure as against the people's subsequent constitutional expression. The court, in Wells, Jr. v. Wells, 105 Ohio St. 471, 138 N.E. 71, again disregards the finality of a decree of divorce.
The case of Love v. Love, 17 Ohio App. 228, also deals with the same subject-matter, but in a different situation. It is therein held that:
"A decree granting a...
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