Cone v. Cone

Decision Date07 August 1931
Citation102 Fla. 793,136 So. 466
PartiesCONE v. CONE.
CourtFlorida Supreme Court

En Banc.

Petition by Ruby A. Cone against H. C. Cone to vacate a decree of divorce. From an order vacating the decree pro confesso and the final decree of divorce, H. C. Cone appeals.

Reversed and remanded, with directions.

Syllabus by the Court.

SYLLABUS

Where there is nothing on the face of the record which shows a decree previously entered to be void and it is alleged that such decree is void because of fraud alleged to have been practiced upon the court and the petitioner, whether or not such decree is void because of such alleged fraud may only be determined on consideration of the pleadings together with evidence properly adduced to show the fraud. Fraud in such cases must be both alleged and proved before the decree will be canceled. Appeal from Circuit Court, Volusia County; M. G. Rowe, Judge.

COUNSEL

Murray Sams, of De Land, and Hulen C. Callaway, for appellant.

Scofield & Scofield, of Inverness, for appellee.

OPINION

PER CURIAM.

In this case there was a petition filed to vacate a decree of divorce. It appears that the petition was treated as an original bill, in the nature of a bill of review to impeach and vacate a final decree. There was a motion to strike the petition and also demurrer to the petition. The demurrer was overruled and motion to strike was denied with exceptions taken to both orders. Thereupon the court made an order vacating the decree pro confesso and final decree of divorce theretofore entered. The allegations of the petition were sufficient when considered as a 'bill to impeach a former decree' because of fraud in its procurement, and the orders on demurrer and motion to strike were without error.

There was nothing on the face of the record in the divorce proceedings which warranted the decree therein to be held void. If such decree was void, it was so because of the fraud alleged in the petition to have been practiced upon the court and the petitioner, and whether or not such fraud existed was a matter which could only be determined upon the consideration of pleadings and evidence properly adduced to show the same. The decree of the chancellor was entered upon the petition and upon the order overruling the demurrer and the order denying motion to strike. The petition itself does not prove the fraud alleged. See Bryant v. Bryant, 101 Fla. 179, 133 So. 635. Therefore, the...

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6 cases
  • Grantham v. Grantham
    • United States
    • Florida Supreme Court
    • September 26, 1939
    ... ... authorities are cited: Bryant v. Bryant, 101 Fla ... 179, 133 So. 635; Chisholm v. Chisholm, 98 Fla ... 1196, 125 So. 694; Cone v. Cone, 102 Fla. 793, 136 ... So. 466. But see also in this connection Gamble v. Gamble ... Holding Corp., 120 Fla. 340, 162 So. 886 ... ...
  • Bemis v. Loftin
    • United States
    • Florida Supreme Court
    • March 23, 1937
    ...jurisdiction where the challenged decree was entered in the first place. Bryant v. Bryant, 101 Fla. 179, 133 So. 635; Cone v. Cone, 102 Fla. 793, 136 So. 466; State ex rel. Willys v. Chillingworth, Judge, Fla. 274, 168 So. 249. Compare Miami Bank & Trust Co. v. Mahlstedt, 107 Fla. 282, 144 ......
  • Reybine v. Kruse
    • United States
    • Florida Supreme Court
    • May 21, 1937
    ... ... cause returned to the docket of pending cases. See Bryant ... v. Bryant, 101 Fla. 179, 133 So. 635; Cone v ... Cone, 102 Fla. 793, 136 So. 466; State ex rel ... Willys. v. Chillingworth, 124 Fla. 274, 168 So. 249; ... Miami Bank ,& Trust Co. v ... ...
  • State Ex Rel. Willys v. Chillingworth
    • United States
    • Florida Supreme Court
    • May 14, 1936
    ... ... decree if it was fraudulently obtained. Bryant v ... Bryant, 101 Fla. 179, 133 So. 635; Cone v ... Cone, 102 Fla. 793, 136 So. 466; Miller v ... Griffin, 99 Fla. 976, 128 So. 416 ... It ... follows that the writ of prohibition ... ...
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