Mansfield v. Mansfield

• Decision Date: 31 January 1858
• Citation: 26 Mo. 163
• Parties: MANSFIELD, Plaintiff in Error, v. MANSFIELD, Defendant in Error.
• Court: Missouri Supreme Court

26 Mo. 163

MANSFIELD, Plaintiff in Error,

v.MANSFIELD, Defendant in Error.

Supreme Court of Missouri.

January Term, 1858.

1. Under the revised code of 1845 a decree of divorce, obtained by fraud, might be set aside upon a petition for a review.

2. Section 14 of the act concerning divorce and alimony (R. C. 1855, p. 666) is applicable only to suits for divorce commenced after May 1, 1856.

Error to Jasper Circuit Court.

McCoy and Hendricks, for plaintiff in error.

I. The court erred in permitting the bill of review to be entertained and in setting aside the judgment. (R. C. 1855, p. 666, sec. 14.)

E. P. Wright, for defendant in error.

I. The petition did not state sufficient ground for a divorce. A final decree was improperly taken at the first term. The decree for divorce was obtained by fraud. (See Vanmeter v. Jones' Exec'rs, 2 Green Ch. 523; Loyd v. Mansell, 2 P. Wms. 73; Bradish v. Gee, 1 Ambl. 229; Lamersdale v. Littledale, 2 Ves. 450.)

NAPTON, Judge, delivered the opinion of the court.

The only ground upon which the judgment of the circuit court in this case is sought to be reversed is the 14th section of the act concerning divorce and alimony in the revised code of 1855. (R. C. 1855, p. 666.) That section provides that “no petition for review shall be allowed of any judgment for divorce rendered in any case arising under this act, any law or statute to the contrary notwithstanding; but there may be a review of any order or judgment touching the alimony of and maintenance of the wife, and the care, custody and maintenance of the children, or of any of them, as in other cases.” This statute did not go into effect until May, 1856. This suit for divorce was commenced in April, 1855. The provision is only applicable to proceedings commenced under the act, and consequently has no application to this case.

To what extent the legislature designed to close up the doors of courts of justice against parties to divorce suits by this enactment--whether the grossest frauds perpetrated in ex parte proceedings must be understood as perpetuated upon the record, without any power in the courts to give redress-- is a question which may hereafter become important. This court has no wish or power to anticipate a decision on this question, nor have I individually any desire to put forward any suggestions of my own. It occurred to me, however, that the facts of this case would furnish a strong commentary upon a very rigid and literal construction of the 14th section above referred to. I state them merely as they stand admitted on the record by demurrer. The plaintiff persuaded his wife to pay a visit to her mother in Illinois, representing to her that her health, which was delicate, would be very much improved by such a trip. No sooner had she started than he instituted a suit for divorce upon the indefinite charge of personal indignities, consisting...