Brown v. Grove
| Decision Date | 23 October 1888 |
| Docket Number | 13,999 |
| Citation | 18 N.E. 387,116 Ind. 84 |
| Parties | Brown et al. v. Grove |
| Court | Indiana Supreme Court |
From the Marion Circuit Court.
Judgment affirmed.
L Howland and L. O. Bailey, for appellants.
H Dailey and F. McCray, for appellee.
It is alleged in the complaint of the appellee that she was married to Henry W. Grove in 1851; that in March, 1863, a decree of divorce was obtained by fraud; that the petition for divorce was filed in her name without her knowledge or consent; that she did not authorize the solicitor whose name is signed to the petition, purporting to have been filed by her, to file any petition; that the petition was filed and procured without her knowledge by Henry W. Grove, and that on the day it was filed he appeared in person and filed an answer.
It is further alleged that at the time the petition was filed she was ill and almost blind; that soon after the decree was entered she became, and has since been, totally blind, and for a great part of the time has been an inmate of the county poor-house.
It is also averred that she had no notice or knowledge of the proceedings until long after the death of Henry W. Grove, and that he died on the 7th day of December, 1883.
The complaint is good. A husband who procures a petition to be filed in the name of his wife against himself without her knowledge, and answers the complaint filed by his own procurement, perpetrates a fraud upon her and upon the court. Such conduct courts abhor. It would be a mockery to uphold a decree obtained by such a fraud. Courts have inherent power to annul decrees obtained by means such as those resorted to by Henry W. Grove. Nealis v Dicks, 72 Ind. 374; Cavanaugh v. Smith, 84 Ind. 380; Earle v. Earle, 91 Ind. 27.
The appellee was neither plaintiff nor defendant. Henry W. Grove was the sole party to the suit. In truth, there was no suit, for there was no plaintiff. It is an ancient maxim that "fraud vitiates every thing," and it is impossible to conceive of a case to which that maxim more strongly and justly applies than the one before us. The proceeding is utterly destitute of force. The infirmity is remediless. The defect is incurable.
The contention of counsel that the appellee was bound to know of the existence of the decree because it was of record, is not only without strength, but is without plausibility. It would be strange, indeed, if a woman was bound to examine the records to ascertain whether she had herself ever instituted a suit for divorce.
The appellee was a competent witness. She had a right to testify as to what she herself did or did not do concerning the petition in the divorce suit. What she did or did not do was a matter neither within the spirit nor the letter of the law prohibiting parties from testifying where heirs are interested. It may be true that as to some other matters she was not competent, but the only objection presented was as to her competency to testify at all, and that objection was properly overruled.
The only question we are required to decide, and the only question we do decide, is, that upon some of the matters involved the appellee had a right to testify, and that, as she was as to those matters a competent witness, it would have been error to have ruled her totally incompetent.
The only argument made by appellants' counsel upon this point is this: ...
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