Everett v. Everett

• Decision Date: 18 March 1884
• Citation: 18 N.W. 637,60 Wis. 200
• Parties: EVERETT v. EVERETT.
• Court: Wisconsin Supreme Court

60 Wis. 200

18 N.W. 637

EVERETT

v.EVERETT.

Supreme Court of Wisconsin.

Filed March 18, 1884.

Appeal from county court, Fond du Lac county.Henry J. Gerpheide and G. Stevens, for appellant, Francis C. Everett.

Winsor & Veeder, for respondent, Sarah M. Everett.

COLE, C. J.

Doubtless the county court set aside the judgment of divorce for the reason that it had been obtained by fraud and imposition, so as to bring the case within the decisions in Johnson v. Coleman, 23 Wis. 452, and Crouch v. Crouch, 30 Wis. 667. It seems to us that conclusion is absolutely irresistable from the facts appearing before the court which could not well be denied. The plaintiff stated in the affidavit made August 11, 1879, to procure an order of publication, that, after diligent effort, he was unable to ascertain either the post-office address or residence of the defendant, so as to make service of the summons upon her. It appears that, in June, 1878, he had commenced an action for a divorce in the circuit court of Juneau county, for substantially the same causes as are stated in the complaint in this action. In that case the summons and complaint were served upon the defendant at Randolph, Cattaraugus county, New York. The defendant appeared by Winsor & Veeder, attorneys of Mauston, filed an answer, and testimony was taken in the cause. The plaintiff states that this action was discontinued February 10, 1879, though that fact is not very satisfactorily established. But be the fact as it may, on the eleventh of February, 1879, he commenced a second action for divorce in the circuit court of Kenosha county. An order of publication was procured in that suit founded on the affidavit of his attorney that, after due diligence, the post-office address of the defendant could not be ascertained. When the defendant's attorneys accidently learned of the pendency of that suit, they entered her appearance and filed an answer. There is no positive statement to the effect that that suit has ever been discontinued. The plaintiff states that he does not know whether an answer was ever served by the defendant in the Kenosha county case. A little effort on his part would have enabled him to have found out how the fact was, and whether the suit had been discontinued. Besides, the plaintiff knew that the defendant's attorneys at Mauston would probably give him any information as to the residence of the defendant, if he was really ignorant of where she lived. But we are constrained to believe that he knew well enough where the defendant lived, but was determined to obtain a divorce, if possible, without her knowledge or the knowledge of her attorneys. So he commenced this suit in the county court of Fond du Lac county, procured an order of publication, which was founded upon his affidavit before referred to. The order directed the summons to be published in a German newspaper. It is difficult to believe that the publication in such a paper would most likely give notice to the defendant, and is additional proof that the plaintiff was not proceeding in good faith. From this circumstance, and other facts in the case, we are entirely satisfied that the plaintiff's statement that he did not know either the residence or post-office address of the defendant was untrue, and that he made it with the fraudulent intent of deceiving the county judge, and preventing actual notice of this suit reaching the defendant or her attorneys. If this were not so, why did not the plaintiff go to trial on the merits in one of the cases which he has already commenced, in which an issue had been formed. His conduct shows he was not acting in good faith, but was endeavoring to obtain a divorce through fraud, both upon the court and the defendant. Such a judgment should not be permitted to stand unless the defendant was guilty of laches in not earlier moving to set it aside. She states in her affidavit that she did not “have any knowledge or information that this action had been commenced until about the month of March, 1882.” This was more than two years after the divorce was granted. The defendant moved to set aside the...