Caswell v. Caswell

• Decision Date: 23 March 1887
• Citation: 120 Ill. 377,11 N.E. 342
• Parties: CASWELL v. CASWELL.
• Court: Illinois Supreme Court

120 Ill. 377

11 N.E. 342

CASWELL

v.CASWELL.

Supreme Court of Illinois.

March 23, 1887.

Appeal from appellate court, Third district.

Charles W. Thomas

, for defendant and appellant, Daniel H. caswell.

Charles Hughes, for complainant and appellee, Ann M. Caswell.

SHELDON, J.

This was a bill in the nature of a bill of review, brought by Ann Mary Caswell against Daniel H. Caswell, in the circuit court of Piatt county, in this state, on December 22, 1883, to impeach and annul a decree of divorce in favor of the latter against the former, entered at the September term, 1869, of said court, on the ground of its having been fraudulently obtained. Upon final hearing on bill, answer, and proofs taken by both parties, the circuit court decreed the relief prayed. On appeal to the appellate court for the Third district, the decree was affirmed, and the defendant appealed to this court.

The bill in the divorce suit of Daniel H. Caswell against Ann Mary Caswell set forth the marriage of the parties in 1862; that the complainant was a resident of Piatt county, in this state; that he lived and cohabited with the defendant until December 10, 1865, when she deserted him, and had for more than two years past persisted in her desertion; wherefore he prayed for a divorce. Attached to the bill was the affidavit of the complainant that Ann M. Caswell was a non-resident of Illinois, and a resident of the state of New York. There was no service of summons on the defendant in that suit, but only notice by publication. There was no appearance of the defendant, and the decree was by default. There was a reference to the master to take proofs, whose report contained the testimony of the complainant of the marriage, of living together as man and wife until December 10, 1865, when defendant left complainant without any cause or provocation, and had continued to remain away, separate and apart from him, ever since; that she left him against his will; that he lived in Piatt county when the bill was filed; that it was about two years since he had heard from the defendant, and that he did not know where she was; also the testimony of one Bixby that the parties lived together until December, 1865; that he always understood that defendant's wife had deserted him; that she had lived separate and apart from him since she left him in December, 1865. This is substantially all that was shown by the report. Its date was February 18, 1869.

The testimony in the present case shows, without any attempt at contradiction, that the complainant and the defendant took up their residence at Cairo, in this state, about the month of October, 1866, and lived there together, keeping house, until in March, 1867, when the defendant sent the complainant on a visit to her parents in Brooklyn, New York; that he desired her to remain there until after her confinement; that she reluctantly consented to go, but did not want to remain there; that he promised to send for her when proper for her return; that in her correspondence with him she was continually urging him to let her return, and he refused to let her do so; that a constant correspondence was kept up between the parties, as shown by 81 letters exhibited in evidence, from defendant to complainant, between the dates of March 26, 1867, and December 6, 1868, and which are corroborative of the foregoing testimony.

Appellant made two applications in the circuit court to remove this cause to the United States circuit court for the Southern district of Illinois,-the first being based on section 2 of the act of congress of 1875; the second, on the act of 1866, third subdivision of section 639. These sections may be found on pages 1864, 1860, Starr & C. St. The court denied the application, because the sum of $500, exclusive of costs, did not appear to be involved in the controversy. This ruling of the court, it is insisted, was erroneous. It is said the statement of the petition that there was such a sum should govern. Although that be the statement of the petition, it manifestly appears not to be true, from the nature of the proceeding; it being but to set aside a mere decree of divorce, and the matter in suit not being measurable by dollars and cents. There was not the money interest even of costs involved in the divorce decree, that decree ordering that the complainant should pay the costs. These statutes, in our opinion, do not apply to such a case as this, and the applications were properly denied.

It is insisted there was error in not sustaining the plea of the defendant setting up section 19, c. 22, Rev. St., as a bar to the suit. That section provides that, within three years after a decree in a case of notice by publication, and not personal service, the defendant, on petition, may appear and answer the complainant's bill, and thereupon such proceedings shall be had as if the defendant had appeared in due season, and no decree had been made; and ‘the decree shall, after three years from the making thereof, if not set aside in the manner aforesaid, be deemed and adjudged confirmed against such nonresident defendant.’ It is contended that the remedy which is hereby provided was all the remedy which the complainant had in this case; that at the end of three years any decree so rendered, upon notice by publication, becomes, by the express provision of law, final and conclusive, unless the defendant appears in the same case, and asks to be let in to defend. The contrary view has been taken by this court in Lyon v. Robbins, 46 Ill. 276, and Southern Bank of St. Louis v. Humphreys, 47 Ill. 227, where it was held that a decree thus rendered, where there was notice by publication, and not personal, the decree was provisional only, and not final in fact, until at the expiration of three years, and that the defendant had five years, after it thus became final in fact, within which to prosecute a writ of error, or file a bill to impeach it. That is, as we understand, to place the decree, at the end of three years, on the same footing of a decree in a case of personal service, and not give to it any higher effect. Those cases but simply announced the general rule as to when bills of review must be filed to impeach a decree. In Sloan v. Sloan, 102 Ill. 581,the same general rule is repeated, with recognition of there being exception thereto.

There is no doubt, from the evidence, that the decree of divorce was fraudulently obtained. It is insisted, however, that, if that be so, all of fraud that there was, was in obtaining the decree by false evidence, and that for such a fraud a judgment or decree cannot be impeached in a separate and independent proceeding; citing Greene v. Greene, 2 Gray, 361, among other cases, as so deciding; and admitting the rule to be otherwise, where the fraud complained of is a fraud whereby the court was given a colorable jurisdiction of the defendant's person, where there was not real jurisdiction of it. And it is denied that there was any fraud of this latter kind in the case.

Edson v. Edson, 108 Mass. 590, illustrates the distinction between these two classes of cases of fraud in giving jurisdiction, and fraud committed after the jurisdiction had in fact attached. In this last-named case the court sustained a petition filed to set aside a decree of divorce in a case where there was no domicile of the plaintiff to give the court jurisdiction, but a fraudulent representation that there was such domicile. In speaking there of Greene v. Greene, supra, which had been cited adversely to the petition, the court say: ‘Strictly speaking, the decision is an authority only for the proposition that a decree of divorce cannot be called in question, or invalidated, on the ground of fraud in its procurement, in a separate and independent libel subsequently brought between the same parties, when it appears that the first decree was entered after due notice to the adverse party, followed by an adjudication upon evidence offered in support of the allegations of the libel. To this extent there can be no doubt that the rescission is in harmony with sound principle, and with the adjudicated cases.’ And the court goes on to distinguish the case then in hand, saying the petition did not seek to set aside a decree rendered against the defendant in a suit of which the court had full jurisdiction, of the pendency of which she had due notice, but in a proceeding of which the court had no jurisdiction, but only an apparent jurisdiction, founded on a false allegation of domicile.

We are of opinion that there was fraud here in both the respects named,-fraud in the giving of false evidence, and fraud with respect to giving jurisdiction. At the time of the institution of the divorce proceedings, and obtaining the decree of divorce, the defendant was not a non-resident of the state of Illinois, but was a resident of the state. She was absent from the state temporarily only, where her husband had sent her, willing and desirous to return to him in this state, and being prevented from so doing by himself. In such case the husband cannot treat his wife as a non-resident, but her residence and domicile is the same as his. Bish. Mar. & Div. (6th Ed.) §§ 118, 125, 126, 753 c; Babbitt v. Babbitt, 69 Ill. 277;Kennedy v. Kennedy, 87 Ill. 250. Yet the complainant, by his false affidavit that the defendant was a non-resident of this state, and a resident of the state of New York, induced the court to...