Graves v. Graves
| Decision Date | 13 November 1906 |
| Parties | ELIZA GRAVES, Appellee, v. LOREN GRAVES, Appellant |
| Court | Iowa Supreme Court |
Appeal from Bremer District Court.-- HON. CLIFFORD O. SMITH, Judge.
THIS is a petition for a new trial of that part of a divorce proceeding fixing alimony awarded to plaintiff in an action brought by defendant against the plaintiff, which resulted in a decree of divorce for defendant in that action with an award of alimony upon her cross-petition filed in that case. The trial court granted a new trial, but refused, in this proceeding, to modify that part of the original decree relating to alimony. Both parties appeal, but as defendant has denominated himself "appellant," he will be so treated. Affirmed.
Affirmed.
Sager & Sweet, for appellant.
Hagemann & Farwell, for appellee.
The original decree was entered September 27, 1902, and this action was commenced January 12, 1904. A new trial is asked because of false testimony given by defendant in the original proceeding, regarding the character and amount of his property, and fraudulent concealment of his property. He testified in the divorce action that he had a little personal property, not exceeding $ 50 in value, and but $ 40 in cash and that he had no other real or personal property of any kind or character. It is claimed that at that time he had other property and that since that time he has acquired still more. It appears that when the divorce was granted, plaintiff had title to a house and lot valued at about $ 525 and upon which there was an incumbrance of $ 125. She has one child by defendant, living with her, which she is compelled to support. It is now claimed that defendant has property worth more than $ 2,000. No alimony was awarded plaintiff in the original divorce decree. A new trial and a modification of the decree with reference to alimony is asked. In answer defendant admitted that he gave testimony as alleged with reference to his property at the trial for divorce, but denies that it was false, and denies that he had, or has acquired, any other property in his own right. He admits that the records now show that he had title to a certain piece of real estate, but avers that he holds it for his brother. He also pleads laches upon plaintiff's part. Defendant also pleaded that while plaintiff was awarded the custody of the minor child, the decree, on account of matters occurring since the date of the decree, should be modified to the extent of giving him the custody of the child. In reply plaintiff pleaded that she did not discover defendant's fraud and false testimony until December 1, 1903, and that she exercised diligence to discover it, but was unable to do so. Upon these issues the case was tried, resulting in a denial of plaintiff's request for modification of the original decree, but awarding her a new trial of that issue.
It is contended that the court was in error in granting the new trial for the reasons: (1) That the action was not commenced within a year from the date of the original decree, according to the requirements of section 4091 et seq. of the Code, (2) that plaintiff knew of the alleged fraud and false testimony within a year and that she was negligent in not sooner prosecuting her action, (3) that the original decree is conclusive, and cannot be set aside because procured by false swearing, and (4) that the testimony to establish the alleged fraud is insufficient. Plaintiff's appeal is bottomed upon the proposition that the trial court should have modified the original award in this proceeding under section 3180 of the Code, and given her permanent alimony for the support and maintenance of herself and child. To this defendant responds by saying that such a decree cannot be modified save where there has been a change in the circumstances and conditions of the parties since the rendition of the original decree. We may premise what we have to say about the case by again stating the familiar and oft-repeated rule that the granting of a new trial rests peculiarly in the sound discretion of the trial court, and that where allowed this court should not as a rule interfere, save where there is a manifest abuse of that discretion. Chambliss v. Hass, 125 Iowa 484, 101 N.W. 153, and cases cited. Another well-settled rule is that when allotments of alimony have once been fairly settled any application for a change should be carefully scrutinized. Fisher v. Fisher, 32 Iowa 20.
Section 4091 et seq. of the Code provide for a new trial upon application by petition within one year, where the final judgment or order was obtained by fraud practiced in obtaining the same. Contention is made that these statutes provide the exclusive remedy and that as the action was not commenced within one year, the application should have been denied. Ordinarily this claim is correct, but where the fraud is not discovered within a year, courts of equity have jurisdiction to grant new trials or modifications of the original decree. Larson v. Williams, 100 Iowa 110, 63 N.W. 464; McConkey v. Lamb, 71 Iowa 636; Clark v. Ellsworth, 84 Iowa 525, 51 N.W. 31. But the grounds for such an application must be such as would have warranted a new trial had application been made within a year. See cases cited. But it is said that false swearing or perjury upon the original trial is not such fraud as will authorize the granting of a new trial. This is undoubtedly the general rule. As there seems to be some confusion in the cases and a difference of opinion among members of the bar regarding this matter, we have deemed it advisable to quote the rule established by the great weight of authority from two or three leading cases. In Greene v. Greene, 68 Mass. 361, 2 Gray 361 (61 Am. Dec. 454), which was an application for the retrial of a divorce case, it is said:
When the court has jurisdiction of the subject-matter and of the parties, when both parties are domiciled in Massachusetts, and the respondent actually appears and defends, or when it appears to the court that the adverse party has been so legally summoned as to be held legally in default, if he does not appear and a decree is passed, dissolving the bond of matrimony, and no appeal, exceptions, or other step is taken to avoid the final judgment, we think it must in its nature be conclusive upon the parties. But if a new and original libel may be brought, upon the ground that a former decree was obtained by false evidence, we see nothing to prevent the husband from bringing a third suit to reverse the decree of reversal, on a suggestion and offer of proof that the decree of reversal was obtained by perjury, subornation of perjury and other fraud, and thus reverse the second decree, and reinstate the original decree of divorce a vinculo. To maintain an original libel, in a case like this, would seem to be contrary to the fundamental principles of judicial action. But we think the point here is settled by authority, not specifically in regard to divorce, but generally as to the conclusive effect of a judgment in a case arising afterwards, on the same matter, between the same parties. We take the rule to be that a judgment of a court of competent jurisdiction, having jurisdiction of the subject and of the parties, by legal process duly served, where no appeal, writ of error, certiorari, review, or other legal process lies, for revising, affirming, or reversing such judgment, or where no such process is commenced, by the party who would avoid the judgment, in the mode and within the time prescribed by law, is conclusive upon the same parties in any other proceeding in law, equity, or before any other judicial tribunal. The maxim that fraud vitiates every proceeding, must be taken, like other general maxims, to apply to cases where proof of fraud is admissible. But where the same matter has been either actually tried, or so in issue that it might have been tried, it is not again admissible; the party is estopped to set up such fraud, because the judgment is the highest evidence, and cannot be controverted. We have seen no reliable authority opposed to the position above taken, that a decree of divorce a vinculo, where no appeal, review, or writ of error is allowed by law, or when the time for bringing such review or writ of error has expired, is final and conclusive upon the parties, and that an original proceeding to set it aside, on the ground that it was fraudulently obtained, upon false evidence, cannot be maintained.
In Pico v. Cohn, 91 Cal. 129 (25 P. 970, 27 P. 537, 13 L. R. A. 336, 25 Am. St. Rep. 159), which was an action in equity to vacate and annul a former decree on account of false swearing and perjury, the court said:
That a former judgment or decree may be set aside and annulled for some frauds, there can be no question; but it must be a fraud extrinsic and collateral to the questions examined and determined in the action. And we think it is...
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