Powell v. Powell

• Decision Date: 23 November 1885
• Citation: 3 N.E. 639,104 Ind. 18
• Parties: Powell v. Powell.
• Court: Indiana Supreme Court

104 Ind. 18

3 N.E. 639

Powell

v.Powell.

Supreme Court of Indiana.

Filed November 23, 1885.

Appeal from Gibson circuit court.

L. C. Embree, for appellant.

McCullough & Miller, for appellee.

ZOLLARS, J.

In April, 1882, appellee, Dr. G. Powell, filed in the Gibson circuit court a petition for a divorce from appellant, and for the custody of their children. In May following, appellant filed an answer in general denial. On the same day, appellee filed an affidavit for a change of venue, on the ground of the alleged bias and prejudice of the judge. This motion was sustained on the twenty-eighth day of August, 1882, and a change of venue from the judge having been granted in four other cases, the judge on that day, by a regular and written appointment, appointed Hon. Alexander Gilchrist, a disinterested attorney, to try all of said causes, naming them. The regular judge of the court was not interested in the cause, was not kin to the parties, and had not been of counsel in the cause. Mr. Gilchrist took the proper oath, which, with his appointment, was entered upon the records of the court. On the thirtieth day of the same month, the case of Doctor G. Powell against Appellant was tried by the special judge, and a decree was rendered and entered, divorcing the plaintiff from appellant, and giving to him the care and custody of the children. No objections of any kind were made by appellant either to the filing of the affidavit for a change of venue, the granting of the same, the appointment of the special judge, or the trial of the case by him. No objection was made to the decree, nor was there any motion for a new trial. That decree stood unchallenged until the commencement of this action on the tenth day of January, 1884, and until after appellee had remarried. This action is to vacate and set aside that decree, on the sole ground that it was and is absolutely null and void.

The position of appellant's learned counsel is that a divorce proceeding is not a civil action in any sense, but a special proceeding; that the provisions of the Civil Code do not apply to it; that, as the divorce act has no provision upon the subject of a change of venue, the venue cannot be changed from the judge on account of his bias and prejudice, and that, therefore, the change above mentioned, and the appointment of the special judge, were without authority, and the whole proceeding, including the final judgment, were and are null and void, and may be disregarded whenever and however they may come in question.

This contention cannot be maintained, for at least two good and sufficient reasons. In the first place, we think that a proceeding for a divorce is, at least in such a sense, and to such an extent, a civil action that the provision of the Civil Code for changing the venue on account of the bias and prejudice of the judge is applicable. Section 1 of the present Code, which is substantially the same as the Code of 1882, provides as follows:

“There shall be no distinction in pleading and practice between actions at law and suits in equity; and there shall be but one form of action for the enforcement or protection of private rights and the redress of private wrongs, which shall be denominated a civil action.” Rev. St. 1881, § 249.

The holdings in this state have been that a jury could not and cannot be demanded in a divorce case. These holdings are not placed upon the ground that the proceeding is a special proceeding, and not a civil action within the above provision of the Code, but upon the ground that the statutes providing for divorces did not and do not contemplate a trial by jury, but by the court. Upon that ground, the holdings are clearly correct. See Lewis v. Lewis, 9 Ind. 105. In this case it was said: “The rule of procedure in cases for divorce obviously contemplates a trial of the cause by the court.” Upon this case are based the subsequent cases, holding that a jury cannot be demanded in the trial of a divorce case. See Morse v. Morse, 25 Ind. 156;Leffel v. Leffel, 35 Ind. 76;Musselman v. Musselman, 44 Ind. 106.

Section 20 of the bill of rights in our constitution provides that “in all civil cases the right of trial by jury shall remain inviolate.” We do not now recollect that the question has ever been made or decided by this court as to whether or not this provision guaranties the right of trial by jury in a divorce case. Clearly it does not. It has been many times decided by this court that the above constitutional provision covers only such cases as were known as “civil cases” before and at the time the constitution was adopted. “Civil cases,” as used in the constitution, therefore, does not include cases in equity, nor special statutory proceedings, and therefore in such cases the legislature may provide for their trial by the court, without a jury. Lake v. Lake, 99 Ind. 339;Miller v. Evansville Nat. Bank, Id. 278; Redinbo v. Fretz, Id. 458; Israel v. Jackson, 93 Ind. 543;Pence v. Garrison, Id. 345; Lake Erie & W. Ry. Co. v. Griffin, 92 Ind. 487;Carmichael v. Adams, 91 Ind. 526;Helm v. First Nat. Bank, etc., Id. 44; Anderson v. Caldwell, Id. 451; Evans v. Nealis, 87 Ind. 262;Hendricks v. Frank, 86 Ind. 278.

The legislature cannot abridge the right of trial by jury as guarantied by the above provision of the constitution; but it has been held that it may enlarge that right, and in effect that the term “civil action,” as used in the Code of 1852, was broader than the term “civil cases,” as used in the constitution, and that under that Code many cases were triable by jury which would not have been but for the Code. Hopkins v. Greensburg, etc., Turnpike Co., 46 Ind. 187;Anderson v. Caldwell, supra; Pence v. Garrison, supra; Redinbo v. Fretz, supra. The Code of 1881, of course, brings us back to the constitution to determine what cases are now triable by jury. And so the ditch law, and perhaps other statutes which we do not now call to mind, dispense with a jury trial. We cite the above cases to show that they were not decided upon the ground that a divorce proceeding is in no sense a civil action under the Code, and that they do not so hold, and for the reason that they lend support to the proposition that as to what are civil actions the Code is broader than the above section of the constitution.

There is a line of cases, however, in which divorce cases have been spoken of as special proceedings, and in which it has been held that they are not civil actions in such a sense that all the provisions of the Civil Code are applicable thereto. These cases had their origin with the case of McJunkin v. McJunkin, 3 Ind. 30, which was decided before the enactment of the Code of 1852. It was provided in Rev. St. 1843, p. 602, § 44, that the practice and proceedings in divorce cases should be the same as in other cases in chancery, except as otherwise provided in the divorce act. It was provided in the chapter in relation to suits and proceedings in chancery that decrees rendered without notice, other than by publication, might be opened within five years to let in a defense, etc., and that, before any decree should be opened, notice should be given to the original plaintiff, his heirs, devisees, executors, or administrators, etc. Rev. St. 1843, p. 347, §§ 98, 99. These provisions about giving notice to heirs, etc., and other considerations stated, together with the serious consequences that might result from opening divorce decrees after so long a time, led the court to think, and to hold in the McJunkin Case, supra, that the above section 44 was not intended to include sections 98 and 99, above. Moving upon the theory that serious consequences might result from opening decrees of divorce after the lapse of years, the legislature in 1852 excepted such decrees from the statute providing that judgments taken upon notice by publication might be opened within five years. 2 G. & H. 66, § 43, (2 Rev. St. p. 52.) And in furtherance of the same policy it was enacted that no complaint should be filed for a review of a judgment of divorce. 2 G. & H. 279, § 586, (2 Rev. St. 1876, p. 247, § 536; Rev. St. 1881, § 615.) Of course, with these statutes in force, there cannot be a review of a judgment and decree of divorce. So it has been held. The holdings rest upon the above statutes, and not upon the ground that the proceeding for a divorce is so absolutely special that no provisions of the Civil Code are applicable thereto. See Woolley v. Woolley, 12 Ind. 663;McQuigg v. McQuigg, 13 Ind. 294;Willman v. Willman, 57 Ind. 500.

It was further held in the Woolley Case, supra, that it was not in accordance with the former usages, practice, and legislation in this state to disturb, for any reason, judgments or decrees for divorce. As to whether any provisions of the Civil Code, aside from that for the review of judgments, would be applied in divorce proceedings, was not decided. The ruling in the McQuigg Case, supra, is the same in effect as the Woolley Case, but goes to the extent of holding that a decree of divorce cannot be set aside for any cause,-not even for fraud. Here, again, nothing is said as to whether or not the Civil Code applies to such a proceeding further than to cite the statute which forbids a review of judgments and decrees of divorce. It is proper to state here that so far as the Woolley and McQuigg Cases hold that decrees of divorce cannot be set aside for fraud upon the court, they have been overruled by the case of Earle v. Earle, 91 Ind. 27.

In the McQuigg Case it was said:

“The policy of our state seems to have been, and to still be, against disturbing divorces granted. This has been induced by a consideration of the consequences necessarily incident to an opposite policy.”

This is a correct statement, and announces a reasonable and salutary policy. It has always been recognized and enforced. It was recognized in the case of Earle v. Earle, supra. It has been the most important considerationin all the...