Kerans v. Kerans
| Decision Date | 28 October 1905 |
| Parties | KERANS v. KERANS. |
| Court | New Jersey Court of Chancery |
Suit by Catherine Kerans against William F. Kerans. On demurrer to a bill of review. Sustained.
Frank P. McDermott, for complainant Henry W. Runyon, for defendant.
STEVENSON, V. C. One of the causes of demurrer specified is that the bill which is indorsed "bill of review" does not allege that it was filed with leave of the court. It is conceded by counsel for the complainant that if the bill is in fact a bill of review, as the solicitor for the complainant evidently thought it was when he filed it, the point taken is fatal on demurrer. Story's Eq. Pl. (7th Ed) § 421b; 2 Dan. Ch. Pl. & Pr. 1578, 1579. In order to avoid the objection above set forth, counsel for complainant endeavors to make it appear that even though the bill was intended as a bill of review, and even though leave to file the same as such might in fact have been obtained, an examination of the bill itself shows that it is not a bill of that character, but is an original bill to impeach a decree for fraud which may be filed without leave from the court. Story's Eq. Pl. (7th Ed.) § 426. I do not think that this view of the bill is tenable. It attacks the decree on some grounds which may properly be presented to the court upon a bill of review, but in my judgment cannot be presented to the court in any original bill filed without leave. Bills of review frequently are based upon, or necessarily involves, charges of perjury, forgery, and other fraud. The distinction between bills of review alleging fraud from original bills to impeach a decree on account of fraud, has not always been sharply drawn. Leaving the decrees of foreign courts out of view, the former class of bills seems to include the latter. See discussion of the nature of the fraud necessary to sustain a bill to impeach a judgment or decree on account thereof by Vice Chancellor Van Fleet, in Dringer v. Receiver of Erie Ry. Co., 42 N. J. Eq. 578-582, 8 Atl. 811. Also opinions of Lords Justices James and Baggallay, in Flower v. Lloyd, 10 Ch. Div. pp. 333, 334; 2 Freeman on Judgments, § 489.
In the present case there seem to be three charges of fraud contained in the bill. Two of these charges, which may be considered together, are in effect that the defendant in his original suit falsely represented that he had been a resident of New Jersey for two years, when in fact he was a resident of New York, and that the defendant also falsely alleged that the complainant had deserted him, whereas in fact the defendant had deserted the complainant by driving her away from their place of abode. These charges of fraud it must be conceded are not distinctly made. The bill does not allege that the complainant was sworn in the cause, and falsely testified to these things. A close examination of this bill illustrates the propriety of the rule which requires the party desiring to file a bill of review to submit his case to the court on petition, and obtain an order permitting the bill to be filed, which order is to a large extent within the discretion of the court, and is based upon the finding of the court that a meritorious case for a rehearing has been made out prima facie. I shall, however, in view of the form of the demurrer and the argument of counsel for the defendant, assume that the bill sufficiently charges that the defendant in his original suit, his divorce suit, imposed on the court by fraudulently making it appear that he was a resident in New Jersey when in fact he was a resident in New York, and by further making it appear that his wife had deserted him when in fact, as he well knew, he bad deserted his wife. With this understanding of the gravamen of this bill I think that it is clearly a bill of review. The residence of the complainant was one of the matters presented by the defendant's petition for divorce and actually tried in that case. The question whether the complainant had or had not deserted the defendant was also an issue—the main issue—in the suit. This bill in effect charges that the court came to an erroneous conclusion upon these isues relying upon false and fraudulent testimony. Whether in any case a party who has suffered defeat in a litigation can, without leave of the court, file a bill to have the judgment or decree of which he complains set aside, on the ground that it was based upon perjured testimony or evidence otherwise fraudulent, and, if so, in what cases and under what limitations, such an equitable action will lie, are far broader questions than any which need be discussed for the disposition of this case. I think that there are very few, if any, such cases which cannot be presented to the court upon a bill of review, and, if they can be so presented, then plainly they ought to be so presented, and ought not to be presented by original bills. If this is not a sound conclusion, then there would seem to be no escape from the evils pointed out by Lord Justice James in Flower v. Lloyd, supra.
The bill also charges that the defendant knew that the complainant was a resident of the state of New Jersey when he brought his suit for divorce, and could readily have ascertained her address, and it is the evident intention of the framer of the bill to make it appear that the defendant fraudulently procured the divorce suit to be conducted as against an absent defendant whose whereabouts could not be ascertained, whereby a decree was obtained without giving the complainant a chance to appear and defend. Admitting that the bill sufficiently alleges this sort of a fraud, and that this sort of a fraud, being collateral to the litigation in which the decree complained of was obtained and not being one of the matters at issue in that cause and decided therein, presents a sufficient basis for an original bill to impeach the decree for fraud, it still remains that this ground for attack on the decree is combined with these other grounds and that all of the...
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