Earle v. Earle

• Decision Date: 20 June 1883
• Docket Number: 10,573
• Parties: Earle v. Earle
• Court: Indiana Supreme Court

91 Ind. 27

Earle v. Earle

No. 10,573

Supreme Court of Indiana

June 20, 1883

Rehearing Date: February 23, 1884

Petition for a Rehearing Overruled, Reported at: 91 Ind. 27 at 41.

From the Kosciusko Circuit Court.

The judgment is affirmed at the costs of appellant.

E. B McClanahan and W. S. Marshall, for appellant.

J Bradley and J. H. Bradley, for appellee.

OPINION

Zollars, J.

This is a proceeding instituted by appellant to have a decree of divorce, procured by appellee, set aside and vacated.

The question for decision is presented by the ruling of the court below in sustaining a demurrer to the complaint. The following abstract of the complaint, as we find it in the brief of counsel, with a few additions, is sufficient for the purposes of this opinion:

Appellant filed her bill in this cause in July, 1882, stating, among other things, that on the 19th of April, 1854, in the county of Lake and State of Indiana, she intermarried with appellee, and with him lived until August 1st, 1866, when the appellee causelessly filed his petition in the common pleas court of Lake county, Indiana, for a divorce; that, on September 4th, 1866, a rule was had on appellant herein to answer, and that, from a transcript of the record, it appears that she appeared and withdrew her appearance, when she was defaulted; that an affidavit was filed to set aside the default and continue the cause; that the affidavit is missing, and that on January 7th, 1867, the cause was dismissed on motion of plaintiff; that of this proceeding appellant never heard until within a few days before the filing of the bill in this cause; that, on April 9th, 1867, appellee filed another like petition in the same court; that summons issued and was, on April 25th 1867, returned, showing personal service, and that proof was taken and preparations were made to try this cause; and that about August 1st, 1867, three months later, appellee, in the circuit court of Kosciusko county, filed his third petition for divorce, identical in its allegations with its predecessors, one of which was pending, desertion being the ground alleged. On September 16th, 1867, the second bill, filed on April 25th, 1867, was dismissed. Summons issued on the filing of the petition in Kosciusko county, on August 1st, 1867, and, as it is fraudulently pretended and asserted, said summons, on August 9th, 1867, came into the hands of the sheriff of Lake county, and a false, fraudulent, and pretended return is made in these words: "By leaving a certified copy at the last named place of residence of Miriam H. Earle. Signed Andrew Krinbill, sheriff of Lake county, per J. R. Uptigrove, deputy." That appellant was never served personally or constructively; that she did not appear, nor did she know of the pendency of the proceeding in Kosciusko county until long after the same had terminated in the rendition, upon default taken, of a void judgment of dissolution; that the said Uptigrove, who signed his name to said return as "deputy," was not, at the time of such service, a regular deputy sheriff of the county and State aforesaid, and not being such, that he had no right under the laws of Indiana to serve such process, and that said sheriff of Lake county had no power by deputation to clothe him with such authority; that several months after said void decree was rendered, she first learned that said pretended deputy had the summons in his possession, and knew if he were such deputy that he could easily get actual personal service on appellant, but that, in pursuance of a fraudulent scheme and conspiracy, the said alleged deputy caused the movements of appellant to be watched, so that when she should absent herself from her home he would then go and pretend to leave a copy at her residence; that said fraudulent and pretended deputy received said summons issued about August 1st, 1867, into his possession on August 2d, 1867, and so continued to hold the same until August 9th, the day of said pretended service and return; that from August 1st to the 9th, appellant was continuously at her home, as said pretended deputy well knew, but that while being watched by said pretended deputy, she, on August 9th, left her home to visit an invalid friend living many miles distant, and that, intending and designing to evade appellant, said pretended deputy did repair to her house and was seen to place a paper on the door nob, and shortly thereafter, on same day, to return and remove and carry away the same paper, and before her return, he knowing she had not returned; that appellant, on her return, entered her home through that door, and there was no paper of any kind there; that she did not learn of this until long after the termination of said suit; and that he fraudulently removed said paper to prevent her from receiving notice; that the suit in Lake county for the same cause was pending and being prosecuted in aid of the same fraudulent design; that she was duly summoned in the Lake county suit; that she entered her appearance; that she was served with notice by appellee to take depositions, which were taken and filed in Lake county; that on May 6th, 1867, she caused notice to take depositions to be served on appellee; that the cause was continued; that she took her depositions, which were filed in the cause; that she watched closely said cause; day was set for the trial, which did not take place, because, on September 6th, 1867, appellee caused the same to be dismissed; that on September 3d, 1867, three days before the dismissal, he had obtained a decree of divorce in the case in Kosciusko county, in a different circuit from the one to which Lake county belonged; that the suit in Lake was merely a part of his scheme and conspiracy to mislead and defraud, and that in twenty-six days after he filed his bill at Warsaw, in Kosciusko county, he obtained the fraudulent judgment (which the bill in this case is filed to impeach); and not only this, but that appellee was not a resident of Kosciusko county when he filed his bill or obtained his decree; that he and appellant were both then residents of Lake county; that with intent to deceive and defraud the court by the false and fraudulent return to the summons, he concealed from the court in Kosciusko county the pendency of the suit in Lake county, well knowing, also, that appellant had no knowledge or notice of the proceedings in Kosciusko county, whereby the proceedings in Kosciusko county are void ab initio; that appellant still claims appellee as her husband; that appellee is living now with another woman, whom he claims as his wife; that by her he has living two illegitimate children, and that by appellant he has two children--one an invalid daughter twenty-six years of age, and a son who has just attained his majority; that she has lived in poverty and tears since the said decree was obtained, and that since then appellee has never contributed one cent to her maintenance and support, although he has all along possessed a large amount of property.

Whether all or any of the matters stated in the complaint are, in fact, true, we can not tell. The demurrer admits the truth of all well pleaded, and we must deal with the case upon that basis. The complaint presents a case of a deliberate determination to defraud and injure appellant, and to prostitute the courts of the State in the accomplishment of that end. The court, in Lake county, which had jurisdiction of the parties, was used as a decoy to attract and fix the attention of the wife, while the court in Kosciusko county, by a false and fraudulent return to a summons, and false statements as to the residence of the appellee, if by no other means, was misled and deceived into the rendition of a decree of divorce, thus breaking up and wrecking one family, and making it possible for innocent third parties to suffer. The State and its people have suffered not a little in their reputation in the past on account of the supposed facility with which divorces have been procured. The fault, if there has been fault, has not been on the part of the courts, the people or the laws, but in the abuse of them by designing and unscrupulous litigants.

The case, as presented in the complaint, is one calling loudly for relief, if it may be granted in accordance with well settled rules of the law.

It is a principle as old as the laws of civilized communities, that a party shall not be condemned without a hearing or notice, and thus an opportunity to be heard. It is true, that in this State, the policy has been not to review or disturb decrees of divorce. This rule has been adopted by the Legislature and the courts from considerations of public policy. But such considerations do not sanction the upholding of decrees rendered in fraud of the courts. Every consideration demands that fraud upon parties shall be rebuked; that the laws shall be honestly and faithfully administered, and that the courts which are the conservators of society, shall purge their records of all judgments and decrees procured by deception, fraud, or perjury. While considerations of public policy may forbid the review of decrees of divorce, they apply only when decrees are, in fact, rendered, the court having jurisdiction of the subject and of the parties. Public policy demands that the homes of the land shall be preserved intact. These homes constitute the foundation upon which rests the fabric of society and stable government. The public has such an interest in them that the husband and wife may not, at their pleasure, by collusion, or by deceit or fraud, break them up. Of course, there are cases where divorces may be proper and necessary, and for such the law has provided. But laxity in the granting of divorces leads to laxity in marriages, and these...