Jones v. Jones

• Decision Date: 20 January 1953
• Docket Number: No. 27599,27599
• Parties: JONES v. JONES.
• Court: Missouri Court of Appeals

Page 260

254 S.W.2d 260

JONES v. JONES.

No. 27599.

St. Louis Court of Appeals, Missouri.

Jan. 20, 1953.

Lee Claridge, St. Louis, for appellant.

No appearance for respondent.

BENNICK, Presiding Judge.

This is a suit in equity to set aside a divorce decree upon the ground of fraud in its procurement.

The plaintiff is James H. Jones, the former husband of defendant, Theresa Jones, who obtained the divorce from plaintiff in the Circuit Court of St. Louis County on September 26, 1947.

The instant suit to set aside the decree was instituted in the Circuit Court of St. Louis County on March 5, 1948.

In his petition plaintiff charged that defendant had separated from him on May 2, 1947, without just cause or excuse, and had instituted her action for divorce on the following May 26th. He then charged that on or about July 8, 1947, without any further action or proceeding in the action for divorce, he and defendant had effected a reconciliation and had resumed cohabitation as husband and wife, fully forgiving and condoning all complaints or grievances which either might have had against the other, and that such cohabitation between him and defendant had continued in good faith until on or about July 13, 1947, when defendant had again left him and without any notice to him of her intention had prosecuted her pending action for divorce to a conclusion, of which fact he was not informed until after the expiration of more than thirty days.

There was the further allegation that plaintiff had had a good defense to the action for divorce in that he had not been guilty of the offenses charged against him, and that defendant was not an innocent and injured party so as to have been entitled to a divorce.

The gist of plaintiff's complaint was that defendant's failure to inform him of her intention to proceed with the divorce action, so that he might file his pleadings and properly prepare his defense, was a fraud upon him; and that her failure to inform the court that a reconciliation had been effected, and that cohabitation as husband and wife had been resumed while the action was pending, was a fraud upon the court and an imposition upon the processes of justice by inducing the court to assume jurisdiction without notice of facts to the contrary.

In her answer defendant denied that she had at any time cohabitated with plaintiff after the institution of her action for divorce; or that she and plaintiff had become reconciled; or that she had ever forgiven him or condoned his treatment of her.

She further denied that plaintiff had not been notified of the progress of her action for divorce, but charged on the contrary that after the service of summons upon him, he had employed counsel to represent him; that he had been notified by letter of the setting of the case on September 26, 1947; and that after the entry of the decree she had personally notified him of the granting of the divorce, and had demanded possession of her home in which he was still residing.

After hearing the case the court entered a decree in favor of defendant, dismissing plaintiff's petition. Following an unavailing motion for a new trial, plaintiff gave notice of appeal, and by further successive steps has caused the case to be transferred to this court for our review.

The question for determination on this appeal is whether the court erred in refusing to grant plaintiff the relief for which he prayed.

It is well established that equity has jurisdiction to grant relief against a judgment upon the ground of fraud in its procurement so long as the complaining party is able to show that he himself was free from fault, neglect, or inattention to his case. But for the fraud to have existed in the procurement of the judgment, it must have related, not to the propriety of the judgment itself, but to the manner in which the judgment was obtained. In other words, the fraud must have been extrinsic or collateral to the matters which either were or could have been presented and adjudicated in the original proceeding, and not merely intrinsic in the sense of having pertained to the merits of the cause upon which the judgment of the court was rendered. In short, it is not the province of this feature of equitable jurisdiction to afford the losing party a retrial of matters either tried or concluded by the original proceeding, but instead relief is limited to those instances where the fraud was of such a character as to have forestalled an opportunity for the fair submission of the controversy. Of such is the situation where the losing party to an action had a meritorious defense to interpose, but was prevented, without fault on his own part, from setting up his defense by reason of the fraud, deceit, or artifice of the successful party. In such an instance the fraud is to be regarded as having been perpetrated, not only upon the losing party, but upon the court as well, and if and when established constitutes a proper ground for equitable relief against the judgment. Jones v. Arnold, 359 Mo. 161, 221 S.W.2d 187; Fadler v. Gabbert, 333 Mo. 851, 868, 63 S.W.2d 121, 130; Tapana v. Shaffray, 97 Mo.App. 337, 71 S.W. 119; Sherer v. Akers, 74 Mo.App. 217, 224; 49 C.J.S., Judgments, Sec. 372; 31 Am.Jur., Judgments, Sec. 654.

It has already appeared that in the present instance plaintiff has sought to have the decree of divorce vacated upon such ground of equitable relief, that is, that the action of defendant in proceeding with...