McDonald v. McDonald
| Decision Date | 11 December 1913 |
| Citation | 161 S.W. 850,175 Mo.App. 513 |
| Parties | CORA McDONALD, Respondent, v. R. F. McDONALD, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Jasper County Circuit Court, Division Number One.--Hon J. D. Perkins, Judge.
AFFIRMED.
Judgment affirmed.
T. D Steele and Hugh Dabbs for appellant.
(1) The judgment and decree in this case are erroneous and under the law and the facts cannot stand. The facts which constitute the fraud must be stated. Bliss, sec. 211. (2) The facts stated in the petition must show that the party was not guilty of negligence or that the judgment was not brought about by any fault or negligence upon the part of the plaintiff, which this petition fails to show. Cantwell v Johnson, 236 Mo. 600; 2 Freeman on Judgments, sec. 486. (3) The burden in this case was on the plaintiff to prove the allegations of fraud set forth in the petition beyond a reasonable doubt. And further that the fraud thus perpetrated was exercised in the very procurement of the judgment complained of, and was a fraud upon the court as well as the other party to the suit. Lieber v. Lieber, 239 Mo. 31. (4) A court of equity will not enjoin the judgment merely because it is founded on a cause of action vitiated by fraud, unless the interposition of the fraud as a defense has been prevented by fraud of the opposite party. 16 Am. Ency. Law (2 Ed.), p. 380; Murphy v. De France, 101 Mo. 157; Freeman on Judgments (3 Ed.), secs. 486, 489. (5) Mrs. McDonald, the defendant in the divorce suit, voluntarily over her own signature entered her appearance and it was immaterial who filed the same in court for her. The Barry Circuit Court became fully possessed of jurisdiction over the parties and the subject-matter of the action. Harding v. City of Carthage, 105 Mo.App. 16; Davidson v. Hough, 165 Mo. 573, 17 Am. Ency. Law (2 Ed.), 1058. (6) The fraud for which a judgment may be vacated must be in its procurement, in its concoction, in the very act itself. Cantwell v. Johnson, 236 Mo. 601, and cases cited. (7) Judgments are impeachable only for fraud extrinsic to the merits of the case. They are not impeachable for fraud relating to the merits between the parties. 2 Freeman on Judg. (4 Ed.), secs. 486-89; Howard v. Scott, 225 Mo. 713; Cantwell v. Johnson, 236 Mo. 601. (8) The court virtually ruled that Mrs. McDonald could not be impeached even though we had at hand testimony to do so. This was clearly error. State v. Long, 201 Mo. 675; State v. Wifger, 196 Mo. 90; Mueller v. Hospital Assn., 5 Mo.App. 401, 73 Mo. 242; State v. Hack, 118 Mo. 99 and 159. (9) Where it is shown that defendant in a case was guilty of negligence and that had it not been for such negligence no judgment would have been rendered a court of equity will not interfere. Curtis v. Bell, 131 Mo.App. 253; Jones v. Rush, 156 Mo. 374.
T. O. Nelson and Sizer & Kemp for respondent.
(1) The petition does state the fraud whereby the respondent and the court were tricked, and the circuit court of Barry county was made an instrument of injustice. Shelton v. Horrel, 233 Mo. 306; Graham v. Graham, 102 P. 891; Dorrance v. Dorrance, 242 Mo. 625. (2) The respondent was not guilty of negligence nor was the judgment brought about by her fault. Lee v. Harmon, 84 Mo.App. 157; Hamilton v. McLean, 169 Mo. 51; Wonderly v. Lafayette Co., 150 Mo. 635; Mayberry v. McClung, 51 Mo. 256; Ramsey v. Hicks, 53 Mo.App. 190; Link v. Link, 48 Mo.App. 345; United States v. Throckmorton, 98 U.S. 61; Freeman on Judgments, secs. 1572-1575; Mangold v. Bacon, 131 Mo. 496. (3) Where the wife is induced, by false representations, to sign a general denial and waiver, judgment and decree will be set aside on proper showing. Graham v. Graham, supra; Dorrance v. Dorrance, 242 Mo. 625; Earle v. Earle, 91 Ind. 27. (4) Where the husband leads the wife to believe that he will not prosecute his divorce suit and she relies thereon and even fails to defend it, it was held fraud upon the defendant and the court. Womack v. Womack, 83 S.W. 937. (5) When the defendant is free from actual negligence and has been deceived by fraud practiced by his opponent for the purpose of misleading the court, both the court and defendant have acted as neither would but for such fraud and a judgment so extorted should be set aside in equity provided the defendant has acted with due diligence to discover the fraud, and upon its discovery is without legal remedy in the action in which the judgment was obtained. Fitzpatrick v. Stephens, 114 Mo.App. 501; Dorrance v. Dorrance, supra; Earle v. Earle, 91 Ind. 27; Graham v. Graham, supra. (6) It is not permissible for defendant to attack the reputation or character of plaintiff by undertaking to show specific acts of immorality, and the court rightfully excludes the offered testimony. Rose v. Tholborn, 153 Mo.App. 408; Shafer v. Railroad, 98 Mo.App. 445-454; State v. Gessell, 124 Mo. 531; Wright v. Kansas City, 187 Mo. 692-693; Yeager v. Bruce, 116 Mo.App. 493. (7) Fraud will vitiate any, even the most solemn transactions; neither judgments at law nor decrees in equity are exempt from the operation of this rule. Dorrance v. Dorrance, 242 Mo. 650.
Defendant obtained a divorce from his wife, the plaintiff above named, in the circuit court of Barry county on July 15, 1912. This action was instituted in the circuit court of said county to have the decree in divorce annulled by reason of alleged fraud in its procurement. A change of venue was taken to Jasper county, where after a trial to the court the relief sought by the plaintiff was granted. The defendant has appealed. Neither of the parties to this action has remarried; therefore, no innocent third parties will be affected by the decision in this case.
That section 2381, Revised Statutes 1909, does not prohibit this action has been settled in the case of Dorrance v. Dorrance, 242 Mo. 625, 148 S.W. 94, where it was held that plaintiff's false affidavit, that the defendant had absconded from her usual place of abode so that the ordinary process of law could not be served on her in this State, was sufficient ground for the setting aside of a decree of divorce in a suit of this kind.
The husband testified at the trial that he was forty-four years of age and the wife that she was forty-one years of age and they had been married over twenty years. Their domestic troubles originated apparently a long time before the attempted divorce proceedings. It appears that prior to the time the divorce suit was instituted considerable difficulty had arisen and charges and countercharges of infidelity were passed between them.
The husband claimed to be a resident of Monett in Barry county and the wife at that time was living with their daughter, who was about twenty years of age, in Oklahoma. Shortly before July 10, 1912, the defendant in this case notified his daughter by post card that he would visit her and her mother on that date. He accordingly arrived there about nine o'clock in the morning of that day and greeted his daughter and his wife with the affection usually displayed in a family where the domestic tranquility is normal. He was taken by the daughter and her fiance in his automobile for a ride about town, made some purchases for the household and returned to the home of his wife and daughter where the four had dinner and a generally sociable and enjoyable time, the defendant showing unusual affection towards his wife. In the afternoon the daughter and her fiance absented themselves for some time and then about four o'clock that afternoon the defendant presented to his wife the proposed petition for divorce, containing brief, mild and general charges of such indignities as it was alleged rendered his condition intolerable. She says that he talked to her at some length about their inability to live together; that he stated he had not concluded just what he would do about a divorce, that perhaps he would not bring suit at all and that if he did so he would notify her. At the same time he presented to her the following paper:
"Comes now the defendant in the above entitled cause and hereby expressly waives the issue of summons in said cause and the service of the same by an officer, and agrees that the same may be submitted and tried at this term of court; and for answer to plaintiff's petition herein defendant admits the marriage as set forth in said petition, but denies each and every other allegation in said petition contained."
The wife made some objections to the allegations contained in the petition but finally, after it was understood between them that some minor changes should be made in the allegations of the petition, the wife signed the answer above quoted receiving the assurance from him, she testifies, that he would send her a copy of it; that the circuit court in Barry county would be in session the latter part of that month and that he would notify her when court was in session. The wife states that she did not agree that she would not appear to defend the suit. She testifies that she intended to appear in court when the case was taken up, if the husband filed the papers; and, while admitting that she used some of the epithets charged against her in the petition, she says she told her husband that she wanted to explain to the court the provocations and the circumstances under which they were uttered. The testimony abundantly shows that the husband intentionally left the impression upon the mind of his wife that the case would not be taken up and that no final decree would be entered in the divorce case until after she was notified and given an opportunity to be present and have a hearing. After the answer was signed the husband...
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