Lieber v. Lieber

• Decision Date: 23 December 1911
• Parties: LIEBER v. LIEBER.
• Court: Missouri Supreme Court

143 S.W. 458

LIEBER v. LIEBER.

Supreme Court of Missouri.

December 23, 1911.

Dissenting Opinion, January 10, 1912.

1. WITNESSES (§ 159)—DISQUALIFICATION— DEATH OF PARTY.

Under Rev. St. 1909, § 6354, disqualifying any person from testifying as a witness as to any matter involved in a cause to which he was a party where the other party thereto is dead, plaintiff, in an action against defendant, who married plaintiff's former husband, to set aside a conveyance to defendant by him on the ground that the property was homestead property and that the divorce obtained from plaintiff was procured by fraud, is disqualified by the death of her former husband from testifying to matters tending to impeach the divorce decree; it being fair on its face.

2. JUDGMENT (§ 815)—FOREIGN JUDGMENT— GROUNDS OF RECOGNITION.

A judgment of a sister state which is fair and regular on its face is entitled to full faith and credit in this state until legally set aside under the full faith and credit clause of Const. U. S. art. 4, § 1.

3. JUDGMENT (§ 822)—FOREIGN JUDGMENT— CONCLUSIVENESS.

As a rule, a judgment entered in one state by a court having jurisdiction is conclusive in all other states as to the claims determined therein.

4. JUDGMENT (§ 820)—FOREIGN JUDGMENT— IMPEACHMENT—FRAUD.

The rule that a judgment of another state be as conclusive in this state under the federal Constitution is subject to the exception that it may be set aside for fraud practiced upon the courts in the very act of procuring the judgment in the same manner as may domestic judgments.

5. JUDGMENT (§ 818)—VACATING—FOREIGN JUDGMENT—GROUNDS—SERVICE OF PROCESS.

A judgment of another state may be set aside in this state by showing that defendant was not legally served with process.

6. JUDGMENT (§ 461)—EQUITABLE RELIEF— FRAUD—EVIDENCE.

To authorize the vacation in equity of a judgment procured by fraud, the fraud must be established by clear and cogent evidence, leaving no room for reasonable doubt.

7. JUDGMENT (§§ 443, 444)—EQUITABLE RELIEF—"FRAUD."

The fraud for which equity will set aside a judgment must have been exercised in the very procurement of the judgment, and be a fraud upon the court and the other party; mere perjury being insufficient.

8. DIVORCE (§ 167)—EQUITABLE RELIEF— FRAUD—PERJURY.

The fact that plaintiff in a divorce action paid his attorney a sum to swear falsely was not such fraud in procuring the decree as will support an equitable action to set it aside for fraud, merely amounting to perjury.

9. DIVORCE (§ 168)—EQUITABLE RELIEF— SUFFICIENCY OF EVIDENCE.

Evidence in a suit involving as incidental relief the setting aside of a divorce decree on the alleged ground of fraud in procuring it held not to show that plaintiff in the former action procured a witness to swear falsely.

10. JUDGMENT (§ 818)—FOREIGN JUDGMENT —PRESUMPTION OF JURISDICTION.

It is presumed that a foreign court of record of general jurisdiction properly acquired jurisdiction to render a judgment.

11. DIVORCE (§ 327)—EQUITABLE RELIEF— ACTIONS—SUFFICIENCY OF EVIDENCE.

Evidence in a suit involving as incidental relief the setting aside of a divorce decree in another state held to show that plaintiff therein was a resident of the foreign state so as to give the court jurisdiction.

12. DIVORCE (§ 168)—COLLATERAL ATTACK.

A judgment of a court having jurisdiction of the parties and the subject-matter cannot be collaterally attacked, so that in an action against the wife of plaintiff's former husband to set aside a conveyance to her by him on the ground that the property was homestead plaintiff could not show that a divorce obtained by her former husband from her was procured through fraud.

13. JUDGMENT (§ 518) — "COLLATERAL ATTACK."

A "collateral attack" on a judgment is an attempt to impeach it in a proceeding not instituted for the express purpose of annulling it.

14. DIVORCE (§ 168)—COLLATERAL ATTACK.

A divorce decree for a husband could not possibly be directly attacked by the wife after the husband's death; the decree being in rem.

15. HOMESTEAD (§ 70)—LAND SUBJECT.

Wild land situated more than three miles from a homestead could not be considered a part thereof.

Valliant, C. J., and Kennish and Graves, JJ., dissenting.

In Banc. Appeal from Circuit Court, Hickory County; Argus Cox, Judge.

Action by Margaret Lieber against Elizabeth Lieber. From a judgment for plaintiff, defendant appeals. Reversed, and bill dismissed.

The plaintiff instituted this suit in the circuit court of Hickory county against the defendant to set aside and have canceled a certain deed made and delivered February 7, 1905, by one Alexander Lieber, now deceased, to the defendant, Elizabeth Lieber, conveying to her certain real estate, fully described in the petition, and located in said county, for the alleged reason, as stated in the petition, that said land was the homestead of said Alexander Lieber, and that she the plaintiff did not join in the conveyance; she also alleging that she at the date of the conveyance was his lawful wife, and at the institution of the suit she was his widow. The petition also charges that a decree of divorce granted by the circuit court of Mercer county, Ill., in the year 1868, in favor of said Alexander Lieber against her, was procured by fraud, and that thereafter, on October 25, 1868, he was married to Elizabeth Lieber, the defendant. The petition, in addition to asking to have the deed of conveyance set aside and canceled, incidentally seeks to have the decree of divorce granted Alexander Lieber against the plaintiff here, the defendant then, also set aside in so far as it affects the real estate in controversy. The answer put in issue all allegations of the petition, and the parties went to trial without questioning the sufficiency of the pleadings. The decree was for plaintiff as prayed, and, after moving unsuccessfully for a new trial, the defendant appealed the cause to this court.

The following facts seem to be undisputed, viz.: During the year 1857 the plaintiff, Margaret Lieber, and Alexander Lieber, were lawfully married in the city of St. Joseph, Mo., and lived together as husband and wife in this state until the latter part of the year 1865 or the first of 1866. That they then went to Quincy, Ill., where they separated. That on October 9, 1868, Alexander Lieber secured a decree of divorce in the circuit court of Mercer county, Ill., against Margaret Lieber, the present plaintiff, on the ground of desertion, based upon publication, regularly had, against her as a nonresident. That thereafter, on October 25, 1868, Alexander Lieber married the defendant Elizabeth Lieber. That in 1884 he acquired the land in controversy, and continued to occupy it as a homestead up to the time of his death. That prior to his death, in 1905, he, for a good, as distinguished from a valuable, consideration, conveyed the land to the defendant, but he and the defendant continued to live on 80 acres of it until his death on February 13, 1907. That the plaintiff knew for a period of 15 years prior to bringing this suit that Alexander Lieber had obtained the decree of divorce from her, and for 2 years or more prior to his death she lived within a mile of the residence of said Alexander Lieber and the defendant but took no action whatever to avoid said decree of divorce, or to assert any claim against the said Alexander Lieber until 7 days after his death, on which date she brought this suit.

Counsel for plaintiff offered, and the court admitted over the objections of the defendant, the testimony of the plaintiff to the effect that she was and had been for many years a resident of the state of Illinois prior to the time the order of publication was issued and published, notifying her of the bringing of said divorce suit on the ground of nonresidence. Counsel for plaintiff also offered, and the court admitted over the objections of the defendant, the testimony of Ben and Ed Lieber, the sons of Alexander Lieber and the plaintiff by the first marriage. At the time of their parents' separation, Ben was only five years of age, and Ed could not have been over seven. Their testimony was to the effect that Alexander Lieber had not been a resident of the state of Illinois for one year immediately prior to the institution of this suit for divorce from his wife; that after the plaintiff and their father separated in Quincy, Ill., he took the children, including Ben and Ed, and Elizabeth Dietz, the defendant, and wandered around for a short time in that state, and then went to Warsaw, Ill., where he made his residence for a period of two years; that about this time he took another trip through Missouri, remaining some three or four months at Perry, and became a resident thereof; that he then renewed his travels over other states, lasting several weeks, after which he returned to Mercer county, Ill., where the suit for divorce was brought, and the decree rendered. They also testified, in effect, that they heard Alexander Lieber state upon one occasion that he had paid some man $40 to swear falsely for him in the divorce case. However, the proceedings had in the divorce case, which were introduced in evidence in this case, show Alexander Lieber himself was the only material witness who testified in his own behalf. These two sons also testified to a great mass of matters tending to show that Margaret Lieber the defendant in the divorce proceedings, and not Alexander Lieber, the plaintiff therein, was the innocent and injured party, but none of this testimony tended to show fraud on the part of the latter in the procurement of the decree for divorce. The defendant in the case at bar, Elizabeth Lieber, as previously stated, objected to the testimony of the plaintiff herein, Margaret Lieber, for the reason that it related to the cause of action, which was in issue, on trial, and decided in the divorce case of Alexander Lieber against her, he being dead. Section 6354, R. S....