Grantham v. Grantham
| Decision Date | 26 September 1939 |
| Citation | 140 Fla. 120,191 So. 197 |
| Parties | GRANTHAM v. GRANTHAM. |
| Court | Florida Supreme Court |
Proceeding in the nature of a bill of review filed by Jessie Grantham against W. L. Grantham, praying for an order vacating and setting aside a final decree in divorce proceedings. From an order setting aside and vacating the final decree of divorce W. L. Grantham appeals.
Affirmed. Appeal from Circuit Court, Saint, Lucie County Alto Adams, judge.
Errol S. Willes, of Fort Pierce, for appellant.
Elmore Cohen, of West Palm Beach, for appellee.
On April 27, 1938, W. L. Grantham exhibited in the Circuit Court of Saint Lucie County Florida, his bill of complaint against his wife, Jessie Grantham, and the prayer thereof sought a divorce on the grounds, viz: (a) Extreme cruelty; (b) habitual indulgence in a violent and ungovernable temper. It was alleged in plaintiff's sworn bill that the place of residence of the defendant Jessie Grantham was to the plaintiff unknown.
On April 27, 1938, te Honorable W. R. Lott, Clerk of the Circuit Court of Saint Lucie County, Florida, made and entered an order requiring the defendant, Jessie Grantham, to appear on June 6, 1938, and defend the suit and the order to appear was published in the Fort Pierce News Tribune once a week for four consecutive issues, and on June 22, 1938, the Honorable Elwyn Thomas made and entered a final decree according to the prayer of the bill of complaint.
On March 22, 1939, pursuant to an order made and entered on October 15, 1938, by the Honorable Elwyn Thomas, Circuit Judge, a bill in the nature of a bill of review was filed in the Circuit Court of Saint Lucie County, Florida, by Jessie Grantham against W. L. Grantham in which it was alleged that the defendant perpetrated a fraud on the court in obtaining the divorce decree dated June 22, 1938, because the said W L. Grantham knew at the time of filing the bill of complaint seeking a divorce and for several years prior thereto that the said Jessie Grantham was living or residing in the State of Florida and when the bill seeking a divorce was filed in Saint Lucie County, Florida, she was then residing in the City of Miami, Florida, and could have been served with process; that the same was well known to the said W. L. Grantham, and he further knew that the said Jessie Grantham was not absent from the State of Florida, and the affidavit in support of the bill of complaint as made by the said W. L. Grantham was false and by him known to be false when made. It was further alleged that the testimony offered and produced by the plaintiff in the divorce proceedings before the Court in support of the ground or grounds for divorce was perjured testimony and the decree for divorce was obtained by fraud on the part of the said W. L. Grantham.
The bill in the nature of a bill of review prayed for an order vacating and setting aside the final decree dated June 22, 1938, and that the said Jessie Grantham be granted the right to file an answer in the divorce suit and that testimony be taken, and the court upon final hearing make and enter such an order or decree as the facts and law would justify.
On January 26, 1939, the lower court made and entered an order setting aside and vacating the final decree dated June 22, 1938, and decreeing that the said Jessie Grantham be required to file on or before the rule day in February, 1939, such a pleading to the original bill of complaint as to her may seem meet and proper. From this order an appeal has been perfected to this Court.
It is contended by counsel for appellant that the divorce decree dated June 22, 1938, is valid on its face and there is nothing in the record showing it otherwise, and the same is not void but at the most voidable and the remedy of the appellee was a motion to vacate the final decree on the ground of deceit, surprise, or some other irregularity and the bill in the nature of a bill of review as filed by appellee in the lower court was improper. The following authorities are cited: Bryant v. Bryant, 101 Fla. 179, 133 So. 635; Chisholm v. Chisholm, 98 Fla. 1196, 125 So. 694; Cone v. Cone, 102 Fla. 793, 136 So. 466. But see also in this connection Gamble v. Gamble Holding Corp., 120 Fla. 340, 162 So. 886.
The record shows that counsel for the respective parties signed and filed in the record in the lower court a stipulation to the effect that the lower court should enter an order permitting and authorizing the appellee to file a bill in the nature of a bill of review in said cause and the court entered said order under date of October 15, 1938, based on the aforesaid stipulation of counsel. The bill in the nature of a bill of review was filed but the appellant here, as shown by the record, failed to attack the bill by motion to dismiss or to strike portions thereof and we fail to find in the record an answer by the appellant to the bill in the nature of a bill of review but the order assigned as error in this Court recites, 'This cause came on to be heard...
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