Nicholson v. Nicholson

• Decision Date: 21 January 1888
• Docket Number: 12,597
• Parties: Nicholson v. Nicholson
• Court: Indiana Supreme Court

15 N.E. 223

113 Ind. 131

Nicholson v. Nicholson

No. 12,597

Supreme Court of Indiana

January 21, 1888

From the Marion Superior Court.

Judgment is reversed, with costs.

B Harrison, W. H. H. Miller, J. B. Elam and G. T. Porter, for appellant.

J. L Mitchell and F. Winter, for appellee.

OPINION

Mitchell, C. J.

This suit was commenced on the 12th day of May, 1883, by Margaret A. Nicholson against David Nicholson to obtain relief from a decree of divorce, or, in the alternative, to recover a judgment for damages on account of fraud alleged to have been practiced by the defendant in obtaining the entry of a decree of divorce from the plaintiff, in the Marion Superior Court in the month of February, 1879.

The complaint is in two paragraphs, and sets out, substantially, the following facts: The parties were married in 1870, and lived together until in January, 1879, when the defendant, without having any cause therefor whatever, commenced proceedings against the plaintiff in the superior court of Marion county to obtain a divorce, and falsely charged her in a complaint filed for that purpose with being an habitual drunkard. It is alleged that the plaintiff had no suspicion that the defendant entertained any thought of obtaining a divorce until she was served with a summons to answer his complaint. Upon being remonstrated with, the plaintiff agreed with the defendant that he would dismiss his suit, and assured her that, because of his promise to abandon the proceedings, it would be unnecessary for her to give the subject any further attention, or take any steps toward defending the suit. Relying on his promise, the plaintiff took no steps to make any defence, but the defendant, in disregard of his agreement, which he made for the fraudulent purpose of misleading the plaintiff, and to prevent her from defending the suit, took a default, and obtained a judgment of divorce against her, without alimony, on the 5th day of February, 1879, she remaining in ignorance thereof for several days thereafter, and until after the adjournment of the February term of the court.

By way of excuse for not more promptly instituting her suit to set the judgment of divorce aside, the plaintiff avers in the second paragraph of her complaint that, having become aware of the fact that the defendant had obtained a divorce soon after the adjournment of the February term, 1879, of the superior court, she was about to institute proceedings to have the decree set aside, when the defendant assured her that she was without any remedy, and promised her that if she would forego her purpose to set the decree aside he would make ample provision for her; that he renewed these promises from time to time, until in July, 1879, when he married again, and immediately thereafter repudiated all his previous promises.

It is charged that the person with whom the defendant contracted his second marriage had knowledge of the fraudulent manner in which he obtained the divorce from plaintiff, and that she knew that the defendant's purpose in obtaining the divorce from plaintiff was that he might contract marriage with her.

It is alleged that in December, 1879, the plaintiff employed counsel and brought suit in the Marion Superior Court to review and set aside the judgment of divorce, but that the suit was decided against her upon a demurrer to her complaint, on the ground that a judgment for divorce could not be reviewed.

In September, 1881, she commenced suit in the Marion Circuit Court to set the judgment of divorce aside. This suit was decided against her upon the ground that the circuit court had no jurisdiction to set aside a judgment rendered in the superior court. In May, 1883, within two months after the termination of the suit in the circuit court, she commenced this action.

The superior court at special term sustained demurrers to both paragraphs of the complaint, and rendered final judgment against the plaintiff below. Upon appeal to the general term the judgment of the special term was reversed, the court being of opinion that a good cause of action for damages was stated in each paragraph of the complaint.

The inherent, common law power of all courts to vacate or modify their judgments, for good cause shown, in a direct proceeding for that purpose, is too firmly settled, both upon principle and authority, to justify further discussion. Nealis v. Dicks, 72 Ind. 374; Cavanaugh v. Smith, 84 Ind. 380; Hogg v. Link, 90 Ind. 346; Weiss v. Guerineau, 109 Ind. 438, 9 N.E. 399.

In respect to the exercise of this power, judgments in divorce suits stand upon the same footing as other judgments, save only to the extent that courts are restricted by specific statutory limitations. Earle v. Earle, 91 Ind. 27; Edson v. Edson, 108 Mass. 590; Adams v. Adams, 51 N.H. 388; Johnson v. Coleman, 23 Wis. 452; Allen v. Maclellan, 12 Pa. 328; Boyd's Appeal, 38 Pa. 241; Fidelity, etc., Ins. Co.'s Appeal, 93 Pa. 242; Zoellner v. Zoellner, 46 Mich. 511, 9 N.W. 831; Yorston v. Yorston, 32 N.J. Eq. 495 Dunlap v. Cody, 31 Iowa 260.

The facts stated in the complaint, and admitted by the demurrer, put the proposition beyond dispute that the appellant obtained a decree of divorce from his wife by the perpetration of a most reprehensible fraud upon her. He violated his agreement to dismiss his proceeding, and thereby prevented her from appearing in court to maintain the propriety of her conduct as a wife, and to vindicate her character from the serious aspersions made upon it by the appellant in his complaint for a divorce, or to secure such an award of alimony as, in the discretion of the court, she may have been entitled to, notwithstanding the alleged habitual drunkenness charged upon her.

The power of the court which gave the decree being ample and plenary to that end, we must assume that, if its jurisdiction had been promptly invoked, the decree, if obtained by the methods disclosed in the complaint, would long since have been set aside. A court that has been imposed upon by a party, who has obtained its decree in his favor by fraud and imposition, will not be slow to vindicate the administration of justice by setting aside a decree so obtained, provided the injured party is diligent in invoking its aid in that behalf.

It is, however, a familiar proposition, and one upon which all the authorities agree, that a party who seeks the aid of a court, and asks to be relieved from a judgment obtained against him by fraud, must proceed promptly upon the discovery of the fraud. An unexplained acquiescence, with knowledge of the facts, and without valid excuse, for an unreasonable length of time, will defeat an action to obtain relief from a judgment. Earle v. Earle, supra.

While judgments in divorce cases are as fully within the common law power of the courts in which they are rendered as are other judgments, there are cogent reasons, which need not be enlarged upon here, for the application of the rule which requires diligence on the part of those who ask to have such judgments set aside for fraud. Public policy requires that persons who seek the aid of courts in this respect shall not neglect to take care of their own rights.

The present case was not commenced until the lapse of more than four years after the plaintiff had been fully informed of the alleged fraudulent decree. Having learned of the divorce within a few days after it was obtained, she agreed to submit to the wrong and indignity which she alleges the appellant put upon her, and desisted from making an application to the court to have the decree set aside, upon the promise of the appellant to make a pecuniary provision for her out of his...