Conklin v. Conklin

• Decision Date: 14 January 1919
• Docket Number: 801.
• Citation: 98 S.E. 221,148 Ga. 640
• Parties: CONKLIN v. CONKLIN ET AL.
• Court: Georgia Supreme Court

98 S.E. 221

148 Ga. 640

CONKLIN v. CONKLIN ET AL.

No. 801.

Supreme Court of Georgia

January 14, 1919

Rehearing Denied Feb. 14, 1919.

Syllabus by the Court.

A husband filed suit for divorce against his wife, a nonresident of the state. The petition for divorce alleged the mental incapacity of the wife at the time of the marriage, unknown to the husband. The wife had both actual and legal notice of the pendency of the divorce case, but failed to appear and defend the same. Fourteen years after final decree, granting to both parties a total divorce, the wife filed an equitable suit against the husband and others alleged to have been in conspiracy with him in the prosecution of the divorce case, to set aside the decree and to recover damages, alleging, in effect, that the ground upon which the decree was granted was fictitious and false, and so known to the defendants at the time of the filing of the suit for divorce, and that she failed to defend the divorce case because the husband and one of his alleged coconspirators fraudulently represented to her, at or about the time of the filing of the suit for divorce, that the decree would be sought and obtained upon the ground of desertion on the part of the wife. The wife had not in fact deserted the husband. Held, that the fraud charged is insufficient to relieve the plaintiff from the imputation of negligence in failing to defend the divorce suit, and that the petition considered as a suit to cancel the decree of divorce or to recover damages, was properly dismissed upon demurrer.

Error from Superior Court, Richmond County; H. C. Hammond, Judge.

Suit by Mary L. G. Conklin against G. H. Conklin and others. General and special demurrers to petition sustained, and suit dismissed, and plaintiff excepts and brings error. Affirmed.

On October 30, 1917, Mary L. Greer Conklin filed a petition in equity in Richmond superior court against George H. Conklin Boykin Wright, Oswell R. Eve, Alonzo F. Purdy, as administrator with the will annexed of Daniel B. Dyer, late of Richmond county, deceased, Turner C. Vason, and Dr. H. H Malone, all of Richmond county, Ga., the Dyer Investment Company, and the Augusta-Aiken Railway & Electric Corporation, also of Richmond county, Ga., and Dr. Henry D. Allen, of Baldwin County, Ga. In substance the plaintiff alleged as follows:

On July 28, 1900, she was married to George H. Conklin in Fulton county, Ga., "but lived with him as his wife only a very short while, because of his drunkenness and his cruelty to her." She went with him to his home at Augusta, with the intention of living with him, but she found it impossible, "because of his dissolute habits and his cruelty to her, which caused her health to break down and precipitated a nervous condition and insomnia." Daniel B. Dyer (a lifelong friend of her family) and George H. Conklin proposed to her that she go to a summer hotel in Baldwin county for the remainder of the summer, and she readily assented, "as a relief from the horrors of the condition in which she found herself as the wife of George H. Conklin," and on August 3, 1900, she was placed under the care of the defendant Dr. H. D. Allen at his institution in Baldwin county. She was kept at Dr. Allen's institution, against her will, until October 17, 1900, when she was taken therefrom and placed by her brother in the Battle Creek (Mich.) Sanitarium. Dr. Allen maintained to her brother that his institution was not an insane retreat, and that petitioner "was not in any manner insane, but was suffering merely from a nervous breakdown." On May 12, 1902, the defendants entered into a conspiracy to "injure, ostracize, and damage petitioner by means of a fictitious judicial proceeding, which purported to culminate in a total divorce between petitioner and George H. Conklin, * * * in the superior court of Richmond county, Ga., on the 28th day of October, 1903." The petition for divorce filed by Conklin against her contained the following false allegation: "That at the time of said marriage said defendant [[referring to the present plaintiff] was a lunatic, mentally incapable of contracting marriage," which fact was unknown to him at the time of the marriage. He also alleged that the plaintiff had been removed from Dr. Allen's sanitarium to a distant state; that when last heard from she was residing in the city of Chicago, Ill.; that on May 12, 1912, in Richmond superior court, an order was passed reciting that she was a nonresident of the state, and that it was necessary to perfect service upon her by publication; and it was accordingly so ordered. In compliance with said order a notice, bearing test in the name of the judge and signed by the clerk, was published and a copy of the publication was mailed to petitioner "when she was studying at the University of Chicago, in Chicago, Ill." Said notice contained the proper caption, and was addressed to the plaintiff, requiring her "to be and appear at the next October term of the superior court of Richmond county, Ga., to be held on the third Monday in October, 1902, to answer a petition for divorce," filed by George H. Conklin as plaintiff against her as defendant. On January 19, 1903, an order was passed in the divorce proceeding, appointing Turner C. Vason as guardian ad litem for petitioner; and on the same day he accepted the appointment in writing. The first verdict for a total divorce was returned on April 25, 1903, and the second verdict was returned on October 28, 1903, and a decree was rendered, granting to both the plaintiff and the defendant a total divorce, and restoring to defendant in that suit her maiden name. "At or about the time of the filing of the pretended divorce petition in Richmond superior court," Conklin and Dyer (the latter having died before the filing of the present suit) represented to petitioner and certain members of her family that the divorce "was being procured on the ground of desertion on the part of petitioner. Petitioner and her family believed this representation, [and] were justified in believing it at that time."

After the decree had been rendered in the divorce suit, petitioner and her family were led by Conklin and Dyer to believe that the divorce had been granted on the ground of desertion, and petitioner had no knowledge to the contrary until "about the 10th day of May, 1917. She had no positive knowledge of any injury to her because of said conspiracy and false testimony [referring to the testimony upon which the divorce was granted] until the 28th day of June, 1917." On or about June 25, 1914, petitioner met a wealthy, cultured unmarried man of 50 years, Mr. F. W. Andros, of South America, and became engaged to marry him. Thereafter she advised Mr. Andros that she had resided in Georgia and had been married and divorced in Georgia. Subsequently Mr. Andros learned, from the record in the divorce proceeding, of the ground upon which the divorce had been granted, and forthwith broke his engagement with plaintiff, without explanation, to her injury, mortification, and humiliation. Andros was a man of great wealth, and as his wife she would have received all the necessities and luxuries of life. On June 28, 1917, Andros advised her of his reason for breaking his engagement with her. In November, 1912, H. W. Freeman, a wealthy widower, residing in Massachusetts, was about to employ petitioner as a companion for his children; but when he learned that she had been divorced he held up the employment until he investigated the record in the divorce case, then refused to employ her, thinking that she had once been insane. Had she procured the position with Mr. Freeman, she would have been well cared for, and, in addition to her board and $40 per month as a salary, would have been given the necessary time in which to "work at her profession as an author. The false and infamous record in the divorce suit of George H. Conklin against Mary Greer Conklin in Richmond superior court made possible only by and through the nefarious plans and designs of the conspirators herein named as defendants" was the sole cause of the plaintiff's failure to procure the position with Mr. Freeman and to consummate an advantageous marriage to Mr. Andros. Said record likewise reflects upon her as a writer of books and magazine articles, to her financial injury and loss. The motive of the defendants, other than Conklin, in conspiring with him, is set forth in the petition, and the failure of the guardian ad litem to defend the suit, and his participation in the conspiracy, are...