Bomsta v. Johnson

• Citation: 38 Minn. 230,36 N.W. 341
• Parties: BOMSTA v JOHNSON ET AL.
• Decision Date: 17 February 1888
• Court: Minnesota Supreme Court

38 Minn. 230

36 N.W. 341

BOMSTAvJOHNSON ET AL.

Supreme Court of Minnesota.

February 17, 1888.

(Syllabus by the Court.)

Notwithstanding the plaintiff in a divorce proceeding has again married, an aggrieved party may, under section 285, c. 66, Gen. St. 1878, maintain an action to set aside and annul a decree a vinculo procured by fraudulent acts or practices.

Said action may also be commenced and prosecuted after the death of the party obtaining such fraudulent decree.

In actions of this nature, the court should require clear proof of the fraud before setting aside a decree, and should also require that all persons interested in a distribution of the estate of the deceased be made parties.

The complaint therein should specifically point out the act of perjury, or subornation thereof, or the fraudulent acts or practices relied upon, and should also clearly show that the action has been brought within the period of time fixed by the statute in question.

Appeal from district court, Kandiyohi county; BROWN, Judge.

This action was brought by Isabella Bomsta to set aside a judgment in divorce. A demurrer to the complaint being sustained, she appeals.

E. St. Julien Cox, for appellant.

Arctander & Arctander, for respondents.

COLLINS, J.

Demurrer to a complaint in an action conceded to have been brought by virtue of section 285, c. 66, Gen. St. 1878, to set aside and annul a judgment in divorce a vinculo matrimonii, entered in 1879, upon alleged default of defendant, the plaintiff herein, who was charged with adultery. Immediately after the entry of said judgment, plaintiff in said action married Pauline Gannon, one of the defendants herein, by whom he had one child at least, and with whom he lived until his death in 1885. There are several children living, the issue of the marriage between this plaintiff and deceased, neither of whom are made parties to this litigation. The statute in question supplants to some extent former methods of vacating and annulling fraudulent judgments. It goes further, and, perhaps improvidently, authorizes the maintenance of an action when a judgment has been procured by perjury or subornation thereof, as well as where a fraud has been committed. The innovation upon the practice in such cases is so marked that parties must certainly expect to bring their pleadings within all the provisions and conditions imposed, especially that which, in express terms, requires the action to be brought within the period of three years after a discovery of the commission or subornation of perjury, or the fraudulent practice of the prevailing party. In the case at bar it is somewhat difficult to determine, from the complaint, whether plaintiff relies upon perjury alleged to have been committed on the trial, or acts of fraud practiced in obtaining the decree, or both; and in this respect the pleading is defective. It should clearly and unmistakably aver the precise ground depended upon for the relief demanded, so that the defendants may be advised of the exact charge, and the court prepared to confine the testimony to the real issue.

We are also of the opinion that the complaint, taken as a whole, indicates that when the divorce proceedings were pending this plaintiff had some knowledge thereof, and made no remonstrance or objection; that she was also informed of the marriage of deceased and defendant Pauline, and that thereafter, until his death, they resided together as husband and wife. The pleader may have attempted in the seventh folio of said complaint, where he alleges want of knowledge of the facts of the divorce “until three years last past,” and again in the the twelfth folio, where it is averred plaintiff did not know, “nor was she cognizant of the facts upon which the divorce was obtained, until within the last year past,” to negative any impression which might be created in the mind of the court from an inspection of the complaint as an entirety; but, if so, the allegations are insufficient for the purpose contemplated; they are indirect and equivocal. Several grounds of demurrer are specified therein, (only one of which we have commented upon,) and the court below was fully justified in sustaining it, for...