Nation v. Nation

• Decision Date: 30 June 1921
• Docket Number: 6 Div. 391
• Citation: 206 Ala. 397,90 So. 494
• Parties: NATION v. NATION.
• Court: Alabama Supreme Court

90 So. 494

206 Ala. 397

NATION v. NATION.

6 Div. 391

Supreme Court of Alabama

June 30, 1921

Rehearing Denied Oct. 6, 1921

Appeal from Circuit Court, Jefferson County; Hugh A. Locke, Judge.

Bill by Lucile Nation against Wesley Nation, her former husband, to set aside and annul a decree of divorce granted by the circuit court of Jefferson county in favor of Wesley Nation on the ground of marital infidelity on the part of the wife and to have a decree of divorce rendered in her own favor on the ground of statutory cruelty. From a decree overruling demurrers to the bill, defendant appeals. Reversed, rendered and remanded.

Somerville Sayre, and Gardner, JJ., dissenting.

This bill shows that the bill for divorce was filed by the husband on April 29, 1919, and that a writ of subpoena was served on this complainant on May 8, 1919, that on proper showing a decree pro confesso was rendered on June 11, 1919, and that on testimony taken and submitted a final decree of divorce was rendered therein on June 17, 1919, by which complainant's husband was allowed to marry again, but no such permission was given to her. It is alleged that the parties continued to live together as husband and wife until September, 1919, when this complainant learned for the first time of the rendition of this decree, and thereupon she left the respondent and has not since lived with him. It is further alleged that the marital infidelity charged as grounds for divorce was falsely alleged, or supported by perjured testimony and did not in fact exist, and that this complainant was fraudulently prevented from making her defense against her husband's bill by his assurance to her, made after subpoena served, that he had filed the suit in a fit of anger, and that he would have the suit dismissed, and his further assurance, upon her several subsequent inquiries, that he had withdrawn the suit and had no intention of getting a divorce, and that these assurances were confirmed by his continuing to live with her as her husband. It appears from the record of the divorce suit, which is made an exhibit to this bill, that on July 16, 1920, complainant filed a petition to a decree in court setting up the fact of the rendition of said decree "without the knowledge or consent of petitioner" on grounds that were false and reciting that her said former husband had been granted the right to remarry, but that the petitioner was not so authorized, and praying for permission for her to marry again if she saw fit. The respondent moved a dismissal of the bill on the grounds that it did not appear that it was filed by the permission of the court, and this motion was overruled. Respondent then filed demurrers to the bill assigning 30 grounds which set up in substance the following objections to the bill: (1) It does not appear to have been filed under any order or permission of the court; (2) It shows laches; (3) it charges no such fraud as is sufficient to annul the decree; (4) it shows negligence and fault on complainant's part in not sooner discovering the alleged fraud; (5) and in allowing the decree to remain for a long time in full force and effect. These demurrers were overruled, and the appeal is from that decree.

Vaughan & Silberman, of Birmingham, for appellant.

Lipscomb & Altman, of Birmingham, for appellee.

SOMERVILLE J.

The bill of complaint here exhibited is not a bill of review, and is not subject to the requirement that the permission of the court must be obtained for its filing. See Murrell v. Smith, 51 Ala. 301, 305; Manegold v. Beavan, 189 Ala. 241, 66 So. 448.

This is an original bill in the nature of a bill of review, grounded upon fraud in the procurement of the decree which it seeks to annul. Hogan v. Scott, 186 Ala. 310, 65 So. 209.

It is a well-settled principle in the impeachment of judgments for fraud, accident, or mistake that the complaining party must not only show that the judgment was the result of such intervention, but also that the complaining party was, as to that result, free from fault or neglect. Sanders v Fisher, 11 Ala. 812, 815; Waldrom v. Waldrom, 76 Ala. 285, 289; Stevens v. Hertzler, 114 Ala. 563, 22 So. 121, 124. A majority of the court are of the opinion that the bill here exhibited is fatally defective in not showing that the complainant made some...