McElrath v. A. McElrath

• Decision Date: 31 January 1913
• Docket Number: 17,843 - (169)
• Citation: 139 N.W. 708,120 Minn. 380
• Parties: ELIZABETH L. McELRATH v. A. McELRATH and Others
• Court: Minnesota Supreme Court

139 N.W. 708

120 Minn. 380

ELIZABETH L. McELRATH v. A. McELRATH and Others

Nos. 17,843 - (169)

Supreme Court of Minnesota

January 31, 1913

Action in the district court for Meeker county by the guardian ad litem of plaintiff against the executor of the last will of W. C. McElrath, deceased, and the legatees named in that will, to vacate a judgment of that court rendered in December, 1897, dissolving the marriage contract between plaintiff and said W. C. McElrath. The facts are stated in the opinion. The case was tried before Qvale, J., who made findings, denied plaintiff any relief and ordered judgment dismissing the action. From the judgment entered pursuant to the order for judgment, plaintiff appealed. Affirmed.

SYLLABUS

Service of summons -- finding.

A return on a summons in a divorce suit showed valid service. A finding that the person who made the return handed a copy of the summons and complaint, inclosed in a sealed and unaddressed envelope, to the defendant, stating that he had been directed by defendant's husband to give the same to her, coupled with a finding that on the same day the defendant ascertained the contents of the summons and complaint, does not show a defective service.

Complaint sufficient after entry of judgment.

Within the rule that when a complaint, after entry of judgment, is attacked for failure to state a cause of action, every reasonable inference must be indulged in to sustain the pleading, the complaint involved in this action is held to have stated a good cause of action for divorce on the ground of wilful desertion.

Vacating decree of divorce -- state uninterested after death of one party.

In an action to vacate a decree of divorce on the ground that it was obtained by fraud and perjury of the prevailing party brought after the death of the party guilty of the fraud, the state is no longer a party interested, and the action becomes one involving mere property rights, governed by the ordinary equitable principles.

Statute inapplicable.

In such an action, where the fraud and perjury charged against the prevailing party does not involve the jurisdiction of the court, nor any fraud or deception by which the opposing party was misled or prevented from making a defense, but relates solely to perjury and concealment in establishing the cause of action alleged, it does not come within the purview of section 4277, R.L. 1905.

Laches.

A defendant, upon whom the summons and complaint in a divorce suit was personally served, delayed for 14 years after such service, and more than 9 years after knowledge that a decree had been entered, to apply to the court to have it vacated but waited till after the death of the plaintiff therein. Held, that her long delay was not excused, either by her ill health or the alleged ignorance of the fraud and perjury practiced by the prevailing party.

H. S. McMonagle and Albert F. Foster, for appellant.

E. P. Peterson, Jesse Van Valkenburg, Sam G. Anderson, Jr., and C. P. Carpenter, for respondents.

OPINION

HOLT, J.

This is an appeal from a judgment dismissing an action brought by plaintiff to vacate and cancel a decree entered December 14, 1897, in the district court of Meeker county, dissolving the marriage relation theretofore existing between plaintiff and her husband, on the ground that the court was without jurisdiction to render the decree and that it was procured through the wilful perjury and deception of the husband. From the pleadings and findings the following facts appear:

In 1887 plaintiff and W. C. McElrath were married in Meeker county, Minnesota, and lived on a farm together until April, 1891, when plaintiff became ill and temporarily insane. She was first taken to her parents' home, distant one mile from that of her husband, in order to obtain needed care. In a few days she was sent to the insane asylum, but allowed to return to her parents after a three months' stay. She was formally discharged from the asylum in November, 1891. Thereafter she became subject to recurrent epileptic fits until January, 1895, which affected her mind to a marked degree, so that "from April, 1891 until now, she has been afflicted with confusional and transitory insanity with recurring periods of lucidity which have become more and more frequent and of longer duration, but owing to her weakened physical and mental condition she has been unable, during all the time, to be away from home and the immediate neighborhood without an attendant and she has shown a decided though intermittent tendency to mental alienation." Her removal to her parents' home, commitment to the asylum, and return to her parents were with the approval of her husband. During the first two or three years after her return from the insane hospital he frequently visited and cohabited with her at her parents' home. Thereafter his visits ceased, and in August, 1897, he instituted an action for divorce in the district court of Meeker county against her on the ground of wilful desertion. A copy of the summons and complaint were delivered to her, but she defaulted, and in December of the same year he obtained a decree dissolving the marriage. There were no children. At least as early as July, 1901, she knew that the decree had been entered. The parties continued to live within one mile of each other until January 15, 1911, when W. C. McElrath died testate.

A few months thereafter this action was brought against the legatees named in the will of McElrath to set aside the divorce decree. The court found "that the said decree of divorce was by the said McElrath obtained by and through, deceit, perjury and corruption, and by gross fraud practiced by him upon the court," but granted no relief to plaintiff.

Plaintiff contends that on the findings she is entitled to relief, first, on the ground that the divorce decree is and always was a nullity for want of jurisdiction, in that the summons was not served on her, and, even if it were, the complaint stated no cause of action; second, that the decree having been obtained by perjury and gross fraud on the court, it ought to be brushed aside without regard to time or consequences.

The return made by the party who served the summons in the divorce suit shows on its face legal service. The court finds as to the service that it was made by the person who made the return handing to the defendant therein, this plaintiff, at her parents' home, a copy of the summons and complaint, inclosed in a plain, sealed, and unaddressed envelope, and stating that her husband had requested him to hand the same to her. Although she immediately gave the envelope to her mother without opening it, it is found that she acquainted herself with the contents of the papers, and on the day the papers were so served upon her wrote to her husband, denying that she had deserted him, and in substance stating that the charge of desertion made by him in his complaint was wholly false and untrue. We entertain no doubt of the legal sufficiency of the service.

The complaint, after stating the residence of the plaintiff in the suit, the age of the parties, their marriage, and that there was no issue, alleged:

"That some time in the month of April, 1891, the said defendant then and there wilfully abandoned and deserted her said husband, this plaintiff, wilfully abandoning and deserting the home he had provided for her, against his wishes and without his consent, and contrary to his express desires; that said defendant has never since that time returned to this plaintiff, but has ever since continued to reside apart from him; that soon thereafter said defendant removed or caused to be removed from the home of this plaintiff all of her personal effects and belongings."

The complaint is not a model pleading, but an attack now, 14 years after judgment, comes too late if a cause of action can reasonably be spelled out of the allegations. Smith v. Dennett, 15 Minn. 59 (81) Solomon v. Vinson, 31 Minn. 205, 17 N.W. 340; Trebby v. Simmons, 38 Minn. 508, 38 N.W. 693; Slater v. Olson, 83 Minn. 35, 85 N.W. 825; Peach v. Reed, 87 Minn. 375, 92 N.W. 229; Kubesh v. Hanson, 93 Minn. 259, 101 N.W. 73. In the last case, an action to set aside a judgment obtained by default in justice court on the grounds that there was no service of summons and that the complaint did not state a cause of action, this court, speaking through Chief Justice Start, says:

"A judgment is never void for error, if the court has jurisdiction over the person of the defendant and the subject-matter of the action. Therefore defects in the pleadings in a civil action -- for example, the failure of the complaint to state facts constituting a cause of action -- do not render a judgment void. It is valid unless reversed or set aside on appeal or by some other appropriate proceeding in the action. An independent action in equity to set aside a judgment cannot be resorted to as a substitute for a demurrer to a defective pleading. 1 Freeman on Judgments, § 135; 17 Am. & Eng. Enc. (2d ed.) 1069."

It must be admitted that in this divorce suit the wilful desertion of the defendant in April, 1891, was alleged with legal accuracy. The contention is that the subsequent allegations do not...