M'Murry v. M'Murry

• Decision Date: 19 April 1887
• Parties: McMURRY v. McMURRY.
• Court: Texas Supreme Court

4 S.W. 357

McMURRY v. McMURRY.

Supreme Court of Texas.

April 19, 1887.

Appeal from Live Oak county.

T. A. Blair, for appellant. A. J. Peeler and J. M. Eckford, for appellee.

STAYTON, J.

This action was brought by the plaintiff in error on January 31, 1885, in the district court for Live Oak county, to vacate a decree rendered by that court on March 15, 1883, and to recover her share of the community property of which she claimed to have been defrauded through a decree obtained through willfully false evidence given and produced by her husband on the trial of an action for divorce instituted by him. The petition in effect alleges that the home of herself and husband was in Live Oak county, Texas, but that she was absent, with the consent of her husband, and at the home of her mother, in the state of Louisiana, distant from Live Oak county about 1,000 miles, when on January 3, 1883, she was served with notice to appear and defend an action for divorce which her husband had filed against her, alleging abandonment as a ground. The petition further alleges that she was without means to come to Texas, or to employ counsel, but that she did by letter secure counsel, to whom she gave such information as she possessed, and that evidence, so far as she was able to procure it, was obtained. The fact of abandonment was denied, and the petition gave a full statement of repeated intercourse between the parties while the plaintiff was in Louisiana, and of the repeated promises of her husband to take her to Texas so soon as he could provide a new home; he having induced her while in Louisiana to consent to the sale of their former homestead in Texas. The petition further alleged that the action for divorce "was brought by the defendant, her husband, with the wicked and willful intent to cheat and defraud your petitioner of her interest in the community property; that defendant willfully, wrongfully, and with the wicked intent to cheat and defraud your petitioner, procured and introduced false evidence to prove said abandonment by petitioner, and with like intent himself did testify falsely as to the amount and value of the community property; that said division was made by said decree on said false evidence so produced and given by defendant; * * * that the decree was made on the proof so made by defendant that said abandonment occurred on the fourth day of June, 1878; * * * that, on the trial of said cause, the defendant, testifying to the amount and value of his estate, testified that he was worth only the sum of $20,000, and that the same was his separate property, when in truth and in fact, at the time of said decree, defendant had in his possession $55,000 worth of property, * * * all of which was community property, except the amounts hereinafter mentioned, which were the separate property of defendant; * * * that defendant had always kept your petitioner in total ignorance of the amount and value of the estate; that petitioner and her counsel neither could find any one who knew anything of the amount and value of the same, but on the trial of said cause her counsel was compelled to rely upon the evidence of the defendant as to the amount and value of said estate; that on said trial defendant testified that all the property, amounting to about $20,000, was his separate property, when in fact there was $55,000 belonging to said estate, which was all community property, save and except the sum of $1,572, which the petitioner admitted was the separate property of the husband." The petition further showed that by the decree in the divorce suit there was set apart to the plaintiff in error property amounting in value to $1,800. The reasonable inferences from the petition are that the falsity of the evidence given by the husband was not discovered until after the close of the term at which the judgment was rendered. Demurrers to the petition were sustained, and the cause dismissed.

The district courts of this state doubtless have all the power exercised by courts of equity to give relief against judgments obtained by fraud, accident, or mistake, and the inquiry arises whether the facts stated in the petition entitled the plaintiff to the relief sought. The petitioner in effect alleges that the defendant procured a decree to be rendered in his favor whereby she was deprived of her share of the community property, and that this was accomplished through willfully false testimony given by the defendant himself in reference to a matter which, from their relation, he had means of knowledge not accessible to her. There is some conflict of authority as to the power of a court of equity to vacate a judgment or decree obtained by false testimony, and it seems to be generally held that such a power will not be exercised unless it be shown that the false testimony was introduced through the procurement or connivance of the party to be benefited by it. Fisk v. Miller, 20 Tex. 581.

It has often been asserted in this state that the district courts, in the exercise of their equitable powers, may grant, by re-examining the case on its merits, such relief as equity and justice may demand, when it is made to appear that a judgment has been obtained by fraud, mistake, or accident, without any want of diligence on the part of the person against whom rendered. Overton v. Blum, 50 Tex. 423. That the willful giving of false testimony by a party to an action in relation to a matter affecting an issue to be tried is fraud of the most pernicious character cannot be questioned, and for such conduct it has been held that the injured party was entitled to have the cause re-examined. Laithe v. McDonald, 7 Kan. 254, and 12 Kan. 340; Bell v. Walnitzch, 39 Tex. 132; Burgess v. Lovengood, 2 Jones, Eq. 460; Peagram v. King, 2 Hawks, 297; Dunlap v. Glidden, 31 Me. 439; Peck v....