Henderson v. Henderson
| Decision Date | 10 January 1916 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Stutsman County, Coffey, J.
Reversed.
Wolfe & Schneller, for appellant.
"Objection to the illegality of the service is considered as abandoned only when the party pleads to the merits in the first instance, without insisting upon the illegality." Motion to quash the order of the court to show cause, specifying and preserving all objections, was the proper practice. Harkness v. Hyde, 98 U.S. 476, 25 L. ed. 237.
On such a motion the court is bound to assume the truth of each fact established by the evidence upon which the decree of divorce was granted, where no fact is challenged. Graves v Graves, 10 L.R.A.(N.S.) 216, and notes, 132 Iowa 199 109 N.W. 707, 10 Ann. Cas. 1104; Greene v. Greene, 2 Gray, 361, 61 Am. Dec. 454; Pico v. Cohn, 91 Cal. 129, 13 L.R.A. 336, 25 Am. St. Rep. 159, 25 P. 970, 27 P. 537; United States v. Throckmorton, 98 U.S. 63 25 L. ed. 94; Steele v. Culver (South Haven & E. R. Co. v. Culver) 157 Mich. 344, 23 L.R.A.(N.S.) 564, 122 N.W. 95.
The representation which may form the basis of statutory collusion must be a misrepresentation. There was no collusion in this case because both charges laid against defendant were true, so far as the record shows, and this record is binding on both parties. Wiemer v. Wiemer, 21 N.D. 372, 130 N.W. 1015; Rev. Codes 1905, § 4058, Comp. Laws 1913, § 4389.
There being no legal collusion, there could be no fraud prepetrated on the court, as every representation made to and in the court was a true one. "Where there is a failure to state a material fact, there is a presumption against the pleader that it does not exist." Maxwell, Code Pl. p. 16 and cases cited; Nation v. Cameron, 2 Dak. 347, 11 N.W. 525; State v. Stewart, 9 N.D. 409, 83 N.W. 869.
Where a wife consents to a divorce against her, in reliance on the promise of the husband to remarry her and to enable him to procure a deed of their homestead, from her father, who refused to convey it so long as she was his wife. After her husband has married another woman she cannot have the decree annulled. Karren v. Karren, 25 Utah 87, 60 L.R.A. 294, 95 Am. St. Rep. 815, 69 P. 465.
Where a party has invoked the jurisdiction of the court, in all equity and good conscience, he should not be permitted to attack a decree which his own acts induced the court to grant. Lacey v. Lacey, 38 Misc. 196, 77 N.Y.S. 235.
Where a party depends upon a transaction which is evil in itself or prohibited by law, and which he must prove in order to make out his own case, he cannot recover. Short v. Bullion-Beck & C. Min. Co. 20 Utah 20, 45 L.R.A. 603, 57 P. 720; Kinnier v. Kinnier, 45 N.Y. 535, 6 Am. Rep. 132; Simons v. Simons, 47 Mich. 253, 10 N.W. 360.
Where a party is entitled to a decree of divorce, the fact that it was brought about by fraud and collusion is no ground for setting it aside. Harft v. Harft, 16 N.Y. Week. Dig. 461.
A certified copy of a court record of a foreign court, by one who claims to be clerk of said court, without further authentication, is wholly incompetent. U. S. Rev. Stat. § 905, Comp. Stat. 1913, § 1519; Rev. Codes 1913, § 7911; Goss v. Herman, 20 N.D. 295, 127 N.W. 78.
M. A. Hildreth, for respondent.
The judgment and decree of divorce is subject to attack by either party, either by motion, by action, or by appeal. Yorke v. Yorke, 3 N.D. 343, 55 N.W. 1095; Nichells v. Nichells, 5 N.D. 125, 33 L.R.A. 515, 57 Am. St. Rep. 540, 64 N.W. 73; Garr, S. & Co. v. Spaulding, 2 N.D. 414, 51 N.W. 867; Simpkins v. Simpkins, 14 Mont. 386, 43 Am. St. Rep. 641, 36 P. 759; Cottrell v. Cottrell, 83 Cal. 457, 23 P. 531; Bell v. Peck, 104 Cal. 135, 37 P. 766; McBlain v. McBlain, 77 Cal. 507, 20 P. 61.
A motion to vacate a judgment is the settled procedure in this state. Freeman v. Wood, 11 N.D. 2, 88 N.W. 721; Kitzman v. Minnesota Thresher Mfg. Co. 10 N.D. 26, 84 N.W. 585; Kenney v. Fargo, 14 N.D. 419, 105 N.W. 92; Minnesota Thresher Mfg. Co. v. Holz, 10 N.D. 16, 84 N.W. 581; Cline v. Duffy, 20 N.D. 526, 129 N.W. 75; Williams v. Fairmount School Dist. 21 N.D. 120, 129 N.W. 1027.
Courts possess the inherent power to vacate and set aside collusive and fraudulent judgments, notwithstanding more than one year has elapsed after entry. 23 Cyc. 907; Whittaker v. Warren, 14 S.D. 611, 86 N.W. 638; Freeman v. Wood, 11 N.D. 1, 88 N.W. 721; Yorke v. Yorke, 3 N.D. 343, 55 N.W. 1095; Balch v. Beach, 119 Wis. 77, 95 N.W. 132.
The defendant was a nonresident, and he was only entitled to notice through the office of the clerk of court. That he had actual notice appears from the record. Johnson v. Coleman, 23 Wis. 452, 99 Am. Dec. 193; Weatherbee v. Weatherbee, 20 Wis. 499; Crouch v. Crouch, 30 Wis. 667; Boyd's Appeal, 38 Pa. 241; Singer v. Singer, 41 Barb. 139; True v. True, 6 Minn. 458, Gil. 315; State v. Whitcomb, 52 Iowa 85, 35 Am. Rep. 258, 2 N.W. 970; Holmes v. Holmes, 63 Me. 420; Binsse v. Barker, 13 N.J.L. 263, 23 Am. Dec. 720; Adams v. Adams, 51 N.H. 388, 12 Am. Rep. 134; Earle v. Earle, 91 Ind. 27; Brown v. Grove, 116 Ind. 84, 9 Am. St. Rep. 823, 18 N.E. 387; Wisdom v. Wisdom, 24 Neb. 551, 8 Am. St. Rep. 215, 39 N.W. 594; Olmstead v. Olmstead, 41 Minn. 297, 43 N.W. 67; Stephens v. Stephens, 62 Tex. 337; Britton v. Britton, 45 N.J.Eq. 88, 15 A. 266; Bryant v. Austin, 36 La.Ann. 808; McMurray v. McMurray, 67 Tex. 665, 4 S.W. 357; Everett v. Everett, 60 Wis. 200, 18 N.W. 637; Firmin v. Firmin, 16 Phila. 75; Bomsta v. Johnson, 38 Minn. 230, 36 N.W. 341; Caswell v. Caswell, 120 Ill. 377, 11 N.E. 342, 24 Ill.App. 548; Gechter v. Gechter, 51 Md. 187; Fidelity Ins. Co.'s Appeal, 93 Pa. 242; Edson v. Edson, 108 Mass. 590, 11 Am. Rep. 393.
It is settled law that courts have inherent power to set aside or revise their judgments and decrees, where they have been obtained by fraud upon one party and imposition upon the court. Parker v. Dee, 3 Swanst. 529; Kemp v. Squire, 1 Ves. Sr. 205; Roach v. Garvan, 1 Ves. Sr. 157; Stevens v. Guppy, Turn & R. 178; Richmond v. Tayleur, 1 P. Wms. 736; Lloyd v. Mansell, 2 P. Wms. 73; Shelford, Marr. & Div. 475; Conway v. Beazley, 3 Hagg. Eccl. Rep. 639, 642; Prudham v. Phillips, 2 Ambl. 763, 20 How. St. Tr. 479, note; Jackson v. Jackson, 1 Johns. 424; Dunn v. Dunn, 4 Paige, 425; Story, Confl. L. § 547; 2 Kent, Com. 11th ed. 109; Re Henderson, 27 N.D. 160, 51 L.R.A.(N.S.) 328, 145 N.W. 574.
And marriage with an innocent party will not defeat this proceeding. Caswell v. Caswell, 24 Ill.App. 548; Everett v. Everett, 60 Wis. 200, 18 N.W. 637; Stephens v. Stephens, 62 Tex. 337.
Where the petitioner is not free from blame, the court may refuse a divorce even though the evidence discloses statutory grounds for divorce, since public policy favors the continuity of the marriage relation. Lyon v. Lyon, 39 Okla. 111, 134 P. 650.
A promise to marry conditioned on obtaining a divorce is void as against public policy. Halls v. Cartwright, 18 La.Ann. 414; Wass v. Wass, 41 W.Va. 126, 23 S.E. 537; 1 Bishop, Marr. & Div. 193; Noice v. Brown, 38 N.J.L. 228, 20 Am. Rep. 388.
"The state is interested in divorce proceedings, being concerned with the preservation of the marriage." Rehfuss v. Rehfuss, 169 Cal. 86, 145 P. 1020.
In some jurisdictions the statute provides that if no defense is interposed in a divorce suit, the state shall, by some officer intervene and defend. This rule rests on the inconvenience which would result to the collateral rights of third parties. Parish v. Parish, 9 Ohio St. 534, 75 Am. Dec. 482; Holmes v. Holmes, 63 Me. 420; Johnson v. Coleman, 23 Wis. 452, 99 Am. Dec. 193; Drexel's Appeal, 6 Pa. 272; Shallcross v. Deats, 43 N.J.L. 177; Tyler v. Aspinwall, 73 Conn. 493, 54 L.R.A. 758, 47 A. 755.
Upon proof of fraud in the procurement of a judgment, the party defrauded may have it vacated at any time. Cannan v. Reynolds, 5 El. & Bl. 301, 26 L. J. Q. B. N. S. 62, 1 Jur. N. S. 873; Allen v. Maclellan, 12 Pa. 328, 51 Am. Dec. 608.
The test is not whether the plaintiff had a just cause for divorce, but was the divorce procured under circumstances which were a fraud on the court and upon the other party. Senter v. Senter, 70 Cal. 624, 11 P. 782; Beard v. Beard, 65 Cal. 354, 4 P. 229; McBlain v. McBlain, 77 Cal. 509, 20 P. 61; Cottrell v. Cottrell, 83 Cal. 459, 23 P. 531; Hopkins v. Hopkins, 39 Wis. 170.
Only reasonable diligence under all the circumstances, as to the time of acting in such cases, is required. Plaintiff acted with such care and diligence in this case. Daniels v. Benedict, 50 F. 347; Yorke v. Yorke, 3 N.D. 351, 55 N.W. 1095.
Plaintiff and defendant intermarried at St. Paul, Minnesota, in 1909. In January, 1914, plaintiff, the wife, applied to attorneys at Jamestown, North Dakota, to prosecute proceedings against her husband for divorce. The defendant was personally served with the summons and complaint at Wahpeton, North Dakota, on January 16, 1914, although he was at that time a resident of Minnesota. He made no further appearance in the action, and upon March 4, 1914, the wife appeared before the district court with due proof and obtained a decree of divorce upon the grounds of cruel and inhuman treatment and adultery with various and divers persons, unknown. The divorce allowed the wife alimony, suit money, and counsel fees, and also provided that either party might marry again after the expiration of three months. During the fourth month after the decree, defendant, the husband, married again, whereupon the wife made application to the trial court for an order to show cause why the decree of divorce should not be set aside. As a basis for this order she filed her affidavit to the effect that prior to...
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