Gresley v. State ex rel. Neireiter

• Court: Indiana Supreme Court
• Writing for the Court: Elliott, J.
• Citation: Gresley v. State ex rel. Neireiter, 123 Ind. 72, 24 N.E. 332 (Ind. 1890)
• Decision Date: 01 April 1890
• Docket Number: 14,970
• Parties: Gresley v. The State, ex rel. Neireiter

24 N.E. 332

123 Ind. 72

Gresley v. The State, ex rel. Neireiter

No. 14,970

Supreme Court of Indiana

April 1, 1890

From the Allen Circuit Court.

Judgment affirmed.

O. N Heaton and W. P. Breen, for appellant.

J. M Robinson, Prosecuting Attorney, for appellee.

OPINION

Elliott, J.

The appellant was prosecuted under the statute regulating proceedings in bastardy cases, and a judgment was rendered against him.

In answer to the affidavit filed by the prosecution, the appellant pleaded that, in November, 1888, the relatrix filed an affidavit before a justice of the peace charging him with being the father of the bastard child of which she was then pregnant; that a trial was had; that subsequently the relatrix admitted, and caused to be entered in open court an admission, that provision for the maintenance of the child had been made to her satisfaction, and signed the entry of such admission in open court, and that the relatrix was then over twenty-one years of age. The proceedings were dismissed, and an entry of dismissal was made upon the record by the justice of the peace. To this answer the State replied that the proceedings mentioned in the answer were fraudulent, and were carried on and controlled by the appellant, and that the State was not a party; that the prosecuting attorney was not notified of the proceeding, and knew nothing of it; that the relatrix is a deaf mute, and has been so since her birth; that she did not know at the time she made the admission what it was, but relied upon the representation of the appellant that it was part of a marriage ceremony; that the appellant employed the attorney who conducted such proceedings, and that the relatrix was of weak intellect and ignorant of all such matters.

The reply shows very clearly that the dismissal was procured by means of an atrocious fraud practiced by the appellant. He not only practiced a fraud upon an unfortunate woman, weak in intellect and deprived of the power of hearing and of speech, but he also practiced a fraud upon the court. He controlled a proceeding conducted ostensibly in behalf of the State, but in fact managed and conducted by him throughout so that he was at once the plaintiff and the defendant, although nominally only the defendant. A judgment so obtained can not have the slightest strength when attacked in a proper method. The only possible question here is whether the fraud in securing the judgment of dismissal relied on in the answer can be made available in any other mode than by a direct attack upon the judgment.

So far as concerns the question of compromise, there can be no doubt that the facts stated in the reply completely and effectually invalidate it, for, as every lawyer knows, fraud vitiates everything. If the transaction is secure it must be for the reason that the judgment of dismissal gives it a sanctity that protects it from collateral attack.

It is difficult to conceive how a judgment obtained at the instigation of the defendant in a proceeding managed and controlled from first to last by him, can be anything else than a mere nullity as against the State. The State knows nothing of such a proceeding, takes no part in it, and the whole thing is the work of the defendant. There is therefore, no reason why he should receive the slightest benefit from his own fraud, or why it should be permitted to impose any duty upon the State. Mr. Bishop, after a careful review of the authorities, declares that a criminal prosecution instigated and controlled by the defendant is a nullity to which the State need give no heed. 1 Bishop Crim. Law, section 1010. In State v. Green, 16 Iowa 239, the court said that the State might treat the proceeding "as a mere farce." Our own cases have declared that the proceeding is a nullity, entitled...