Chermak v. Chermak

• Decision Date: 27 October 1949
• Docket Number: 28525.
• Citation: 88 N.E.2d 250,227 Ind. 625
• Parties: CHERMAK v. CHERMAK.
• Court: Indiana Supreme Court

88 N.E.2d 250

227 Ind. 625

CHERMAK v. CHERMAK.

No. 28525.

Supreme Court of Indiana.

October 27, 1949

Oscar A. Ahlgren, Whiting, for appellant.

Ryan & Chester, Valparaiso, Floyd R. Murray, Hammond, for appellee.

STARR, Judge.

This action is an equitable one seeking, by direct attack, to set aside and vacate for fraud, a decree of the Porter Circuit Court wherein the appellee obtained a divorce from the appellant.

The trial court sustained appellee's demurrer to appellant's amended complaint for insufficient facts; that ruling alone is assigned as error.

The substantial allegations of the amended complaint are as follows: that appellee had a husband living at the time of her marriage to appellant; that appellee knew she was not divorced from her husband at the time she married appellant, and when she brought her action for divorce against appellant; that at the time of the divorce trial appellant was a prisoner at the Indiana State Farm; that he was brought back for the trial and was present at the trial in person and by counsel; that at the time of the trial appellant had already learned of the bigamous nature of his marriage with the appellee; that he discovered this fact 'at about the time' of the trial. Although it is not contended that the complaint is based upon duress, yet there are allegations therein to the effect that during the trial appellant 'was not in good or normal health, either in body or mind.' The complaint also admits that he conveyed certain real estate to appellee, and accepted from her the sum of $7,821.36 all as ordered by the decree. It is also averred that his physical and mental state was caused by his discovery of the bigamous marriage, and because there were other criminal charges pending against him which had been instigated by appellee. Also, that he acquiesced in the decree by executing the conveyance to appellee, as ordered, and by accepting the payment from her due to his physical and mental condition, and because he believed he would be punished by the court and prosecuted further on the pending criminal charges if he did not so acquiesce.

It is not contended, nor could it be, under its allegations, that this complaint is based upon duress. The only contention is that the facts pleaded constitute fraud of a nature which would require a vacation of the decree.

It has been said 'that the court will not set aside a judgment because it was founded on a fraudulent instrument, or perjured evidence or for any matter which was actually presented and considered in the judgment assailed.' United States v. Throckmorton, 1878, 98 U.S. 61, 25 L.Ed. 93. See also Friebe v. Elder, 1914, 181 Ind. 597, 105 N.E. 151; State ex rel. Adam v. Martin, Auditor, 1926, 198 Ind. 516, 154 N.E. 284; Pepin v. Lautman, 1901, 28 Ind.App. 74, 62 N.E. 60. This is sometimes referred to as 'intrinsic fraud,' or fraud in the inducement. On the other hand, it has been decided that fraud in procuring the exercise of jurisdiction of the court, or fraud which, in fact, prevents a trial of the issue in the case, will warrant the vacation of a judgment. Examples of fraud which prevent a trial of the iseue are illustrated in United States v. Throckmorton, supra, 98 U.S. 61, 25 L.Ed. at page 95 which reads as follows:

'Where the unsuccessful party has been prevented from exhibiting fully his case, by fraud or deception practiced on him by his opponent, as by keeping him away from court, a false promise of a compromise; or where the defendant never had knowledge of the suit, being kept in ignorance by the acts of the plaintiff; or where an attorney fraudulently or without authority assumes to represent a party and connives at his defeat; or where the attorney regularly employed corruptly sells out his client's interest to the other side--these, and similar cases which show that there has never been a real contest in the trial or hearing of the case, are reasons for which a new suit may be sustained to set aside and annul the former judgment or decree, and open the case for a new and fair hearing.'

Fraud which warrants the avoidance of a judgment, is often referred to as fraud in the procurement. Brake et al. v. Payne, 1893, 137 Ind. 479, 37 N.E. 140; State ex rel. v. Martin Auditor, supra; Pepin v. Lautman, supra. As defined in the cases...