Craig v. Craig

• Decision Date: 10 December 1921
• Docket Number: 23,069
• Citation: 202 P. 594,110 Kan. 13
• Parties: SARAH E. CRAIG, Appellee, v. S. J. CRAIG, Appellant
• Court: Kansas Supreme Court

202 P. 594

110 Kan. 13

SARAH E. CRAIG, Appellee, v. S. J. CRAIG, Appellant

No. 23,069

Supreme Court of Kansas

December 10, 1921

Decided July, 1921

Appeal from Rawlins district court; CHARLES I. SPARKS, judge pro tem.

SYLLABUS

SYLLABUS BY THE COURT.

1. JUDGMENT OF THIS COURT PROCURED BY FRAUD--May be Set Aside. The supreme court has both inherent and statutory power to prescribe a rule of procedure whereby an order of the supreme court reversing a judgment which was procured by the fraud of a litigant may be set aside and corrected.

2. JUDGMENT OF REVERSAL--Procured by Fraud of Appellant--Motion to Set Aside--Procedure to Bring Appellant into Court. The filing of a motion to set aside an order of the supreme court reversing a judgment procured by the fraud of an appellant, a copy of which motion was personally served upon him, and due notice given him of the time set for the hearing of such motion, is a proper and sufficient procedure to bring the appellant into court and to challenge the attention of the court thereto.

3. SAME--Motion to Set Aside Judgment--A Direct Attack Upon Such Judgment. A motion to set aside an order of the supreme court reversing a judgment, on a sufficient showing that the order was procured by the fraud of the appellant, is a direct attack upon the order of reversal.

4. SAME--Devisees Named in Will of Deceased Appellee--Proper Parties to Attack an Order of Reversal Procured by Appellant's Fraud. Devisees under an appellee's will and the successors to her estate, and her executor, may properly present a motion in the supreme court calling its attention to alleged fraudulent conduct of the appellant whereby the court was induced to order a reversal of the judgment of the trial court.

5. DIVORCE--Decree--Appeal--Death of Appellee--Action for Divorce Abated --Rights of Property Not Determined. The death of a party to an action for a divorce, pending its appeal, abates the action or appeal so far as it affects the marital status, but it does not necessarily abate the action or appeal so far as property rights are concerned.

6. DIVORCE -- Appeal -- Death of Appellee -- Order of Reversal Procured by Fraud of Appellant--Parties to Motion to Set Aside Order of Reversal. Where a motion to set aside an order reversing a judgment alleged the following facts: That appellee obtained a judgment for divorce and for all the property she owned at the time of her marriage; that appellant brought the cause to the supreme court for review; that abstracts and briefs for both parties were filed and a date set for the hearing of the appeal; that meantime appellee became insane and was residing in a private hospital; that appellant lured her from the hospital and induced her to sign a stipulation that the supreme court should reverse the judgment, and induced her to destroy her will; that appellant filed the stipulation in the supreme court, and an order of reversal was entered pursuant thereto; that shortly thereafter the appellee died,--it is held, that the devisees of the destroyed but reestablished will and the lawful successors to the appellee's property, and her executor, may properly present such motion to set aside the order reversing the judgment; and the facts alleged require that their truth be ascertained.

W. H. Cowles, and J. M. Stark, both of Topeka, as amici curiae and appearing specially for the appellant.

C. A. P. Falconer, Earl E. Howard, both of Atwood, and W. S. Langmade, of Oberlin, for the appellee.

OPINION

DAWSON, J.:

We have here to consider a motion to set aside an order of reversal of a judgment entered by this court on a stipulation of the parties, which, it is alleged, was procured by the fraud of the appellant.

It appears from the motion and documents filed in its support, and from the files of the case, that Sarah E. Craig, nee Morse, a widow, sixty-seven years of age, and having considerable property, married the appellant, S. J. Craig, a man some twelve to twenty years her junior; and that on March 27, 1920, she obtained a divorce from him in the district court of Rawlins county, on the ground of extreme cruelty. In that decree Mrs. Craig was restored to her former name, Sarah E. Morse, and all property which she owned at the time of her marriage to Craig, some $ 25,000 worth of real estate and several thousand dollars' worth of government bonds and other personalty, was likewise decreed to her. Craig was given back the property owned by him at the time of his marriage, about $ 600.

From that judgment Craig filed an appeal in this court.

After the divorce was granted by the district court of Rawlins county, Mrs. Craig made a will devising her property to various persons and naming W. S. Langmade, Esq., of Oberlin, as executor.

Mrs. Craig then made a journey to Kentucky, but returned to Rawlins county in October, 1920, in very poor health and entered a hospital at Atwood. There, according to the recitals of this motion and the showing made in its support, her mental and physical health continued to decline until in December, 1920, she became incapacitated to transact business and incapable of understanding what she did. Her disabilities and infirmities did not improve thereafter.

Meanwhile, the appellant, through his counsel, Dempster Scott and C. E. Scott of Atwood, and E. H. Benson of Colby, had filed an abstract and brief in this court, in Craig's appeal from the judgment of divorce. Counsel for the appellee, W. S. Langmade, and E. E. Howard of Atwood, filed a counter-abstract and a brief in her behalf, and the cause was ready for argument and submission and was set down for hearing in this court on February 11, 1921.

On or about January 20, 1921, the appellant went to the hospital at Atwood, and in the absence of the physician in charge met Mrs. Craig, and persuaded her to go for a drive with him. He carried her to her farm home, and obtained her signature to a stipulation that this court should reverse the judgment of the Rawlins county district court. About the same time he induced Mrs. Craig to destroy her will. The stipulation signed by her and appellant being filed, the order of reversal was entered pursuant thereto as a matter of course on February 11, 1921.

When counsel for appellee were advised of this action by the clerk of this court, they replied:

"LAW OFFICES OF

LANGMADE AND HOWARD

ATWOOD, KANSAS.

"D. A. Valentine, Esq.,

"Feby 17, 1921.

"Clerk of the Supreme Court,

"Topeka, Kansas.

"DEAR SIR:

"In re Craig versus Craig. No. 23,069.

"We are in receipt of card dated Feby., 11th., stating that this case has been reversed as per stipulation. We are quite at a loss to understand what is meant by this. We, as attorneys for appellee, never signed any stipulation, have never seen it and know not what it contains. Messrs., Scott and Son, Attorneys for Appellant, advise us that they know nothing of it.

"Furthermore, it was understood between Attorneys Scott & Son, and ourselves, that the case was to be submitted to the Court on briefs.

"We believe under the circumstances that the Court should vacate its order of reversal as per stipulation until an investigation of this matter may be had, and we will greatly appreciate your soon reply advising us in full as to the manner in which and the basis for the action taken by the Court. . . .

"Very respectfully yours,

LANGMADE AND HOWARD."

Two months later, on April 17, 1921, Mrs. Craig died.

This motion is presented by the parties, a score or more, whose rights of property are affected by the alleged fraud of the appellant. The executor of the will--destroyed through the alleged fraud and undue influence of appellant, but restored and probated on order of the district court--joins in this motion to set aside the order of reversal.

A motion is also on file that this court appoint a commissioner to ascertain the facts touching the alleged fraud narrated in the motion now presented.

Notice of this motion was served upon appellant; and his counsel, appearing specially and as amici curiae, raise several objections to the motion,--that appellant is not in court, that there is no case in court, that the petitioners are not in court, and that the judgment of reversal was voidable only and not void. On the other hand, counsel for the petitioners confine their argument largely to the question:

"Can judgment or order of the supreme court reversing a lower court's ruling be opened or vacated in a divorce case after the death of one party when said judgment or order was obtained in the supreme court by fraud on said court?"

To determine the propriety of this motion to set aside the order of reversal, the court, for the nonce, must assume that the matters addressed to our attention are true. Quoting from the allegations of the motion--

" . . neither her physician, relatives or her attorneys were consulted as to taking her from said hospital and that she had not, from the time she was taken to said hospital to the time of her death, any opportunity to be advised by her relatives or attorneys; that at the time she was so taken from said hospital and during all the time from then up to the time of her death she was wholly irresponsible mentally insane, and had not sufficient capacity to transact any kind of business, was easily influenced by those about her to do whatever they desired her to do; and that during such period, without the knowledge of her relatives or attorneys, she was induced by the said S. J. Craig to sign the paper, a copy of which is hereto attached, made a part hereof and marked exhibit 'B,' which was presented by the attorneys of the said S. J. Craig, to this court as a stipulation or request, to this court for the reversal of said decree of divorce;...