Crane v. Deacon

• Decision Date: 14 July 1923
• Docket Number: No. 23538.,23538.
• Citation: 253 S.W. 1068
• Parties: CRANE v. DEACON et al.
• Court: Missouri Supreme Court

253 S.W. 1068

CRANE v. DEACON et al.

No. 23538.

Supreme Court of Missouri, Division No. 2.

July 14, 1923.

Appeal from Circuit Court, St. Louis County; John W. McElhinney, Judge.

Suit by Walter F. Crane against Bettie Deacon and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Geers & Geers, of St. Louis, for appellant. Vincent Dempsey and Glendy B. Arnold, both of St. Louis, for respondents Father Dunn's Newsboys' Home and another.

Frank Y. Gladney, Eliot, Blayney, Bedal & Eliot, Lewis & Rice, Nagel & Kirby, R. M. Nichols, Walter H. Saunders, J. Clarence Taussig, and Percy Werner, all of St. Louis, for other respondents.

WHITE, T.

This suit, brought in 1921, has for its purpose to set aside a decree of divorce granted June 2, 1909, to Elizabeth Waddingham Crane, wife of the plaintiff. Elizabeth Waddingham Crane died December 28, 1919, testate. The petition sets out in full the will by which she left large sums of money to about 20 charitable institutions, besides various bequests to individuals. The beneficiaries of the will and the collateral heirs at law of Elizabeth Waddingham Crane were made parties defendant. She left no descendants.

The petition alleges that in April, 1909, in the circuit court of St. Louis county, Elizabeth Waddingham Crane filed suit against the plaintiff here for divorce, and in that suit she alleged that the defendant, plaintiff here, had been guilty of such indignities as rendered her condition intolerable. It is further averred that in the suit for divorce she falsely alleged her residence to be in the county of St. Louis, state of Missouri, when her actual residence was in the city of. St. Louis; that she made a false affidavit as to residence to as to confer a pretended jurisdiction upon the court; that the court, deceived by the false allegations of the petition and the false affidavit, assumed jurisdiction of the cause; that a writ of summons was issued, and a copy of the petition was served upon Walter P. Crane by the sheriff of the city of St. Louis, which service was insufficient to confer jurisdiction, because both the plaintiff and the defendant in said suit were residents of the city of St. Louis.

It is further alleged that Walter F. Crane engaged counsel to represent him in said divorce suit, and instructed his attorneys to file an answer; that he was ignorant and Unadvised by counsel that the court had no jurisdiction; that afterwards, on the 8th day of May, 1909, the said Lizabeth Waddingham Crane and this plaintiff, Walter F. Crane, together with the attorneys representing both, entered into a collusive agreement having for its object the dissolution of the marriage contract between Walter F. and Elizabeth Waddingham Crane, whereby it was agreed that she would pay Walter F. $3,000 immediately after the divorce was granted on condition that Walter F. would not defend the suit; that, after the rendition of a pretended decree, the said sum was actually paid, and that the $3,000 so paid was divided equally between Walter F. and his attorney.

It is further alleged that Walter F. was ignorant and unadvised of the law regarding a collusive agreement; that he desired to file an answer denying the allegations made by Elizabeth Waddingham Crane, and desired to go upon the witness stand and deny orally the charges, and informed his said attorney that, if he would be permitted to file an answer and testify orally, he would summon no witness and make no further defense. He was then advised that, even though he entered said collusive agreement, his answer denying said allegations would be filed in court, and he would still be permitted to testify orally in his own behalf, and, believing the statements of his attorney to be true, he furnished his attorney facts necessary to draw and file his answer, and then orally entered into the collusive agreement aforesaid; that afterwards, an Tune 2, 1909, he attended court in order to avail himself of the privilege of testifying at the hearing, expecting that such opportunity to testify would be afforded him, but that the case was heard ex parte, default taken thereon, and the decree entered by the honorable court purporting to dissolve the bonds of matrimony aforesaid, and restoring Elizabeth Waddingham Crane to all the rights of an unmarried woman.

It was further alleged that during all the time the divorce suit was pending plaintiff here was wholly ignorant that the court was without jurisdiction, and remained in ignorance until he sought legal advice May 1, 1921. It is then alleged that the charges set forth in the petition for divorce were false and fraudulent, and, if proved, were not sufficient to warrant a decree, in that the petition did not allege any of the grounds required by the statute of Missouri in order to procure the divorce; that the indignities stated in said petition did not constitute indignities under the law of Missouri.

The petition prays that the decree of divorce be declared null and void ab initio, and that the plaintiff be restored to all his rights, property, and privileges, as of the date of the rendition of the pretended decree.

Several of the numerous defendants were served by publication, and some entered their appearance. Some of them filed separate demurrers to the petition. These demurrers were sustained, and, the plaintiff declining to plead further, judgment was rendered against him, and he duly appealed to this court.

Briefly, the petition alleges three grounds upon which the plaintiff seeks to set aside the decree of divorce:

(a) That the court had no jurisdiction to grant the decree because at the time the suit was brought and thereafter neither the plaintiff nor the defendant resided in St. Louis county, but in the city of St. Louis. That fraud was practiced upon the court whereby it was induced to assume jurisdiction.

(b) That there was collusion between the plaintiff and the defendant whereby the defendant in the divorce suit, for a consideration of $3,000, did not contest the suit.

(c) The petition in the divorce suit did not state a cause of action, and the evidence in support of it was false and prejured testimony.

Some allegations of the petition indicate that Walter F. Crane's attorney misrepresented to him the facts, and erroneously advised him as to his rights, but further allegations show he was entirely willing to have the decree rendered. He does not press the point in his brief here.

It is argued by the plaintiff that the court which rendered the decree of divorce had no jurisdiction of the parties nor of the subject-matter of the action because such jurisdiction was limited, to the Bounty in which the plaintiff resided; that the allegations of the petition and the statutory affidavit in support of it, as to residence, stated. jurisdictional facts which must be established before a court could proceed to try the issues. It is further urged, this being a direct attack upon the judgment, that the want of jurisdiction may be shown by learol evidence.

Leaving out of view for the moment the death of one party to the judgment; and the delay of 212 years in bringing tile suit, on account of which the defendants assert the action is barred by the statute of limitations, we will consider the effect of the judgment as between the parties.

The general rule in relation to the impeachment of judgments for fraud is that relief is limited to fraud in the procurement of the judgment. It must be extrinsic to the merits of the case—collateral to the issues joined. Many of the cases hold that it must be such fraud as prevents the other party from making a defense. Cantwell v. Johnson, 233 Mo. loc. cit. 601, 139 S. W. 365; Marley v. Land Mfg. Co., 289 Mo. loc. cit. 229, 230, 232 S. W. 704; Hamilton v. McLean, 139 Mo. loc. cit. 686, 687, 41 S. W. 224; Lieber v. Lieber, 239 Mo. loc. cit. 44, 45, 143 S. W. 458; Railroad v. Mirrielees, 182 Mo. 143, 81 S. W. 437. These are only a few of the numerous cases which announce the doctrine. A judgment cannot be impeached for fraud where the fraud consists of perjury, forged documents, or false proof of any fact in issue to which the other party has an opportunity to make a defense. Several of the cases cited quote from the case of United States v. Throckmorton, 98 U. S. 61, 25 L. Ed. 93, where that court held that the impeachment of a judgment for fraud was allowed "where the unsuccessful party has been prevented from exhibiting fully his case, by fraud or deception practiced upon him by his opponent, as by keeping him away from court. * * * " It was said by this court in the case of Lieber v. Lieber, 239 Mo. loc cit. 45, 143 S. W. 472, quoting from a federal case (Vance v. Burbank, 101 U. S. 514, 25 L. Ed. 929):

"It has also been settled that the fraud in respect to which relief will be granted in this class of cases must be such as had been practiced on the unsuccessful party. * * * False testimony or forged documents even are not enough, if the disputed matter has actually been presented to or considered by the appropriate tribunal."

II. We may concede the plaintiff's claim that in a divorce suit the petition must state the facts regarding residence, and the plaintiff must swear to them in order to give the court jurisdiction. These alleged facts are in issue the same as any other facts alleged in the petition; it is a complete defense to show such allegations are not true. It is not alleged here that the defendant filed an answer in the divorce case, but it is alleged that he employed an attorney to file an answer, and that he appeared in court on the day of the trial. He had every opportunity to require strict proof of those allegations, so that the trial court must have considered and determined the facts in relation to the jurisdiction just as it passed upon other facts in issue. We cannot presume that the trial court failed of its duty in that respect; it could not have granted a decree of divorce unless the...