Blass v. Blass
| Citation | 186 S.W. 1094,194 Mo.App. 624 |
| Parties | ROSA BLASS, Appellant, v. BARNEY BLASS, Respondent |
| Decision Date | 06 June 1916 |
| Court | Court of Appeal of Missouri (US) |
Submitted on Briefs May 4, 1916.
Appeal from St. Louis City Circuit Court.--Hon. Leo S. Rassieur Judge.
AFFIRMED.
Judgment affirmed.
Emerson E. Schnepp for appellant.
(1) The judgment in the divorce suit of Blass, v. Blass is null and void and of no effect for the reasons: (a) That plaintiff Barney Blass, was not and had not been at the date of signing and making affidavit to the petition, and at the date of the filing thereof, a resident of the State of Missouri for one whole year next prior thereto, within the meaning of the law and the court therefore had no jurisdiction of defendant, Rosa Blass, or the marriage status, the res. R. S. 1909, section 2373; Kruse v. Kruse, 25 Mo. 69; Bishop, Marriage and Divorce, section 192, 193; 1 Black on Judgments, sec. 320; Minor, Conflict of Laws, sec. 29, pp. 70, 71; sec. 59, p. 114; sec. 63, p. 119. (b) The allegations as to defendant's residence in said divorce petition, "that defendant is not resident within the State of Missouri, her place of abode being to this plaintiff unknown," conferred no jurisdiction on the court to grant the order for service of process by publication, and therefore said publication was not service of process on defendant, and the court was without jurisdiction to grant said decree of divorce. R. S. 1909, sec. 1770; Dorrance v. Dorrance, 242 Mo. 625, 651; Howard v. Scott, 225 Mo. 685, 713; Stern v. Judson, 163 Cal. 726. (2) The law is well settled in this State, as elsewhere, that a court of equity will in a direct proceeding grant relief against a judgment or decree procured by fraud, provided the fraud is established by clear, strong and cogent evidence, leaving no room for reasonable doubt as to its existence; and provided, further, that the fraud thus perpetrated was exercised in the very procurement of the judgment complained of and was a fraud upon the court as well as upon the other party to the suit. Dorrance v. Dorrance, 257 Mo. 317, 325; Dorrance v. Dorrance, 242 Mo. 625, 651; Lieber v. Lieber, 239 Mo. 1, 31; Howard v. Scott, 225 Mo. 685, 713, 714. (3) A court of equity will set aside and annul its judgment or decree when it is founded on a cause of action vitiated by fraud, if the interposition of the fraud as a defense has been prevented by the fraud of the opposite party. Howard v. Scott, 225 Mo. 685, 714; Ward v. Quinlivin, 57 Mo. 425, 427; United States v. Thockmorton, 98 U.S. 61. (4) Fraud will violate any, even the most solemn transactions. Both judgments at law and decrees in equity are within the operation of this rule, and an asserted title founded upon it is utterly void. Not only may relief be had from fraud in equity, but as between the parties themselves; whatever the transaction may be, it is void. Dorrance v. Dorrance, 242 Mo. 625, 651, 652; Lewis v. McCabe, 76 Mo. 307, 309; Ward v. Quinlivin, 57 Mo. 425, 427; Freeman on Judgments, secs. 250, 591; Story, Equity Jur. (13 Ed.) 261, sec. 252. (5) The question of laches or limitation, barring plaintiff's suit, is not in this case for the following reasons: (a) Said decree of divorce by reason of the fraud in its procurement is null and void. Cases cited under Point IV. (b) A court of equity always has the power, independent of statute, to set aside its own decrees at any time for fraud in procuring them. Salisbury v. Salisbury, 92 Mo. 687. (c) Defendant herein by his concealment of said decree of divorce from plaintiff until 1905 and his subsequent promises, conduct and acts toward plaintiff, which prevented her from heretofore prosecuting a suit to annul said decree of divorce, is estopped from setting up the defense of laches or limitation.
Fauntleroy, Cullen & Hay for respondent.
(1) A judgment obtained on service by publication is impervious to attack for any defect or imperfection in the service and not apparent upon the face of the record, and the jurisdiction of the court to render it cannot be questioned and the publication in this case was not, in any sense, obtained by fraud. The defendant was a non-resident. Payne v. Lott, 90 Mo. 676; Jones v. Driskill, 94 Mo. 190; Schmidt v. Niemeyer, 100 Mo. 207; Gibbs v. Southern, 116 Mo. 204; Cruzen v. Stephens, 123 Mo. 337; State ex rel. v. Wessell, 237 Mo. 593. We find no case which imposes the duty upon the plaintiff of giving any other notice than one required by law. Obviously, if the law declares what notice shall be sufficient, it was not intended that the plaintiff should give some other additional notice. The mere fact that the defendant in the divorce suit did not see the published notice of the suit, did not and could not affect its validity. Ellis v. Nuckols, 237 Mo. 290. Our reports are full of cases holding such services to be valid, notwithstanding the fact that the defendants never saw the publication. The circuit court of the city of St. Louis acquired jurisdiction over the persons of both plaintiff and defendant, in the divorce suit, and that being true, it must necessarily have acquired jurisdiction of the subject-matter of that suit, which was the marital relation existing between them. Gould v. Crow, 57 Mo. 200. (2) The fraud that will authorize a court of equity to set aside a judgment rendered by a court of competent jurisdiction, whether of this or of another State, must be fraud exercised in the procurement of the judgment and was, therefore, a fraud upon the court and the other party to the suit, and such fraud must be established by clear, strong and cogent evidence, leaving no room for reasonable doubt. Lieber v. Lieber, 239 Mo. 1. And perjured testimony is not such fraud upon the court as authorizes the judgment to be set aside. Proof that a plaintiff in the divorce suit paid a certain person money to swear falsely for him in the divorce suit is not sufficient to set a divorce decree aside. Lieber v. Lieber, 239 Mo. 1. (3) Plaintiff's right to relief in this action is based on fraud and the Statute of Limitations begins to run when the fraud is discovered, and it is clear beyond question that the plaintiff discovered the alleged fraud in 1905 when she filed her first bill in equity. 25 Cyc. 1173 to 1182, also 1183 to 1184, and authorities cited; Perry v. Craig, 3 Mo. 274. (4) The limitation for an equitable action for relief on the ground of fraud is prescribed by the fifth subdivision of section 1889, which requires that an action for relief on the ground of fraud shall be brought within five years. R. S. 1909, sec. 1889; Fitzpatrick v. Stevens, 114 Mo.App. 497; Ruff v. Miller, 92 Mo.App. 620. Where the fraud, as in this case, is an open one, or known to the plaintiff, the statute runs within five years. Scott v. Boswell, 138 Mo.App. 601. (5) The statute bars equitable as well as legal actions, with the distinction that when the relief sought is based upon an equitable right a court of equity acts upon its own inherent rules, and will refuse to interfere where there has been gross laches or long acquiescence in the operation of adverse rights, even though the action may not be barred by the statute. Loomis v. Railroad, 165 Mo. 469. Laches is an equitable defense. There is no artificial, fixed or determinate rule on this subject, but each case, as it arises, must be decided according to its own particular circumstances. Kline v. Vogel, 90 Mo. 248. (6) A judgment on demurrer will constitute res judicata where it goes on the merits of the case, such as where the petition or bill does not state facts sufficient to constitute a cause of action. Conn. Mutual Ins. Co. v. Smith, 117 Mo. 261-296; Wells v. Moore, 49 Mo. 229; Coleman v. Dalton, 71 Mo.App. 14; Bennett v. Southern Bank, 61 Mo.App. 297. The former suit was a suit in equity and the general rule is that in suits in equity, even though the plaintiff voluntarily dismisses the action, yet if the dismissal is based on the merits of the case as that the complainant is shown no ground of relief or the like, such dismissal is res judicata as to all matters involved in the proceeding. U. S. v. Parker, 120 U.S. 89; Baker v. Cummings, 181 U.S. 117; 24 Am. & Eng. Ency. of Law (2 Ed.), 803.
--This is a suit in equity commenced in the circuit court of the city of St. Louis November 17, 1911. Its object and purpose is to set aside and annul a decree of divorce entered by that court in a case in which Barney Blass, defendant here, was plaintiff and Rosa Blass, here plaintiff, was defendant.
It is averred that the decree of divorce was entered by default March 29, 1904; that it was alleged in the petition for the divorce that ever since November 28, 1902, and up to the time of filing the petition for the divorce, which was December 22, 1903, the defendant in that case, plaintiff here, had absented herself from her husband, Barney Blass, without any cause whatever; that this allegation was untrue; that on the contrary Barney Blass, without any cause or excuse therefor, and without any knowledge on the part of plaintiff of his intention so to do, deserted and abandoned her and secretly left their home in San Francisco, California, on December 20, 1903, coming to Kansas City, Missouri, and soon thereafter to St. Louis, and that from and since that time had concealed his whereabouts from the plaintiff here until, after diligent search and inquiry, she learned of his whereabouts in January, 1905.
It is further averred that the allegation in the divorce petition that the place of abode of the defendant in that case, plaintiff here, was unknown to Barney Blass, was untrue, as he well knew that at all the times mentioned in the divorce petition, the...
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