Carlisle v. Carlisle

• Decision Date: 16 June 1893
• Citation: 55 N.W. 673,96 Mich. 128
• Court: Michigan Supreme Court
• Parties: CARLISLE v. CARLISLE.

55 N.W. 673

96 Mich. 128

CARLISLE v. CARLISLE.

Supreme Court of Michigan

June 16, 1893

Appeal from circuit court, Wayne county, in chancery; George S Hosmer, Judge.

Bill for divorce by William N. Carlisle against Ella Carlisle. Complainant had decree, which was subsequently set aside. Anna E. Carlisle, the second wife, intervened, and on her petition the order vacating the decree was set aside, and from this order defendant appeals. Affirmed.

Ervin Palmer, for appellant.

Sylvester Larned, for complainant. E. H. Sellers and Alfred Lucking for executor of estate of Anna E. Carlisle.

McGRATH J.

A divorce was granted in the Wayne circuit court in chancery between the parties, February 26, 1887. In May, 1891 defendant filed her petition to set aside the decree alleging as the sole ground that the proceedings were commenced, and the order for appearance published, and the decree entered, against Ellen Carlisle, whereas defendant's name is Ella Carlisle. No opposition was made to the application, and, in June following, an order was entered vacating the decree. In August following, by stipulation the proceedings were discontinued. In January, 1892, Anna E. Carlisle appeared before the court, and set forth that in March, 1887, she had married the complainant, and had lived with him as his wife until November, 1890; that at that time they separated; that in December, 1890, William N. Carlisle had filed a bill for divorce in the Wayne circuit court in chancery against her, and that the proceeding for divorce was still pending. The court then made an order requiring complainant and defendant to appear on a day named, and show cause why the order vacating the decree should not be set aside, and the stipulation stricken from the files. After a full hearing the court made an order restoring the decree, and striking the stipulation from the files, but ordered, also, that said defendant have leave, if she so elect, to bring her petition for leave to answer to a hearing upon first giving 20 days' notice to Anna E. Carlisle to come in and answer said petition, and show cause why the prayer thereof should not be granted. From this order defendant appeals.

It appears from the record that for four years defendant had known of the granting of the divorce, and of complainant's intermarriage with Anna E. Carlisle. Complainant and defendant had separated in 1886. She had gone west, taking with her a son, the issue of the marriage. In August, 1888, she was in Detroit, and an order to show cause why she should not deliver the boy over to the custody of complainant, in accordance with the decree, was served upon her, and she made an agreement with complainant with reference to the boy. The order served upon her ran against her as Ellen Carlisle. It is also apparent from the record that the proceedings to vacate the decree was instituted at the instigation of complainant. In the divorce proceeding instituted by William N. Carlisle against Anna E. Carlisle an adjustment of the question of alimony had been made. William N. had conveyed to Anna E. the homestead and certain personal property. Defendant resided in Wisconsin. Her petition to set aside the decree and her answer to the order to show cause are sworn to in that state. She did not appear in person at either hearing, nor does it appear that, since the vacation of the decree, complainant and defendant have lived together. The solicitor who appeared for complainant when the decree was vacated appeared for defendant in the subsequent proceeding, and appears here for appellant. Although for four years defendant had known of the remarriage of complainant, she omitted all reference to it in her petition, and to that petition no answer was filed. Within two months after the decree was set aside, although grave charges were made against her in the testimony upon which the divorce was granted, a stipulation was filed, discontinuing the divorce case. There is no longer any doubt of the power of a court of equity to set aside its own decree of divorce for fraud in its procurement, or for want of jurisdiction, on the application of the party against whom the decree was obtained; and this, although the other party may have remarried, and children may have been begotten. Edson v. Edson, 108 Mass. 590; True v. True, 6 Minn. 458, (Gil. 315;) Whitcomb v. Whitcomb, 46 Iowa, 437; Adams v. Adams, 51 N.H. 388; Everett v. Everett, 60 Wis. 200, 18 N.W. 637; Caswell v. Caswell, 24 Ill.App. 548; Allen v. Maclellan, 12 Pa. St. 328; Stephens v. Stephens, 62 Tex. 337. But the decree cannot be avoided by the party guilty of the fraud, (Simons v. Simons, 47 Mich. 253, 10 N.W. 360;) nor at the instance of third parties, (Baugh v. Baugh, 37 Mich. 59;) nor can a party who obtains the divorce, and accept its benefits, afterwards question the jurisdiction of the court granting it, (Ellis v. White, 61 Iowa, 644, 17 N.W. 28; Kile v. Yellowhead, 80 Ill. 208; Morriss v. Garland, 78 Va. 215; Embry v. Palmer, 107 U.S. 8, 2 S.Ct. 25.) This is not, however, an application by a third party to set aside a decree of divorce. The order appealed from was an order setting aside an order obtained upon a petition filed evidently by collusion with complainant, and which concealed from the court a fact of which the court should have been advised; an order which made Anna E. Carlisle an adulteress, and affected, and was probably calculated to cut off, rights of property. Ordinarily the rights of the second wife are fully protected by the husband, who appears and makes known the remarriage. Here the husband made no defense. To hold that in such a case the second wife, who had in good faith relied...