Roberts v. Roberts

• Decision Date: 25 January 1896
• Citation: 33 A. 872,19 R.I. 349
• Parties: ROBERTS v. ROBERTS.
• Court: Rhode Island Supreme Court

33 A. 872

19 R.I. 349

ROBERTS

v. ROBERTS.

Supreme Court of Rhode Island.

Jan. 25, 1896.

Petition for divorce by Jane Roberts against Edward Roberts. The petition was heard and granted; but, after the petitioner's death, defendant moved for a new trial. Denied.

Claude J. Farnsworth, for heirs of Jane Roberts.

George J. West, for defendant.

MATTESON, C. J. On August 22, 1894, Jane Roberts filed in this court her petition for divorce against Edward Roberts. Citation on this petition, returnable at the October session, 1894, was duly issued, and served on the respondent September 7, 1894. No appearance was entered by the respondent or in his behalf, and on February 13, 1895, the petition was heard by the court and granted. The petitioner, Mrs. Roberts, died July 16, 1895, leaving personal estate to the amount of about $7,000. On August 1, 1895, the respondent filed his petition in the cause to set aside the docket entry granting the divorce, and to reinstate the case on the docket. He rests his petition on the ground that the allegations of the petition for divorce, and the evidence in support thereof, were false, as the petitioner and her witnesses well knew, and seeks to excuse his failure to contest the petition because of his inability, by reason of confinement to the house by a serious illness, to wit, consumption. But, if the charges in the petition were false, he must have known of their falsity before the petition was heard, and could either have employed counsel to appear for him to suggest their falsity, or, at least, could have notified the court himself that they were false. The petition is, in effect, a petition for a new trial of the divorce petition, because of the falsity of the charges contained in it, and of the testimony in support of them, and because the petitioner knew of the falsity of the charges and of the testimony, and therefore practiced a fraud on the court such that the court ought to set aside its decree. We should have regarded the petition with more favor if the respondent's solicitude for the court and the interests of the public had prompted him to move in the matter before the death of Mrs. Roberts. We cannot resist the feeling that the respondent is more solicitous to obtain the $7,000 left by the deceased than to protect the court from imposition and uphold the interests of justice. The language of the court in Zoellner v. Zoellner. 40 Mich. 511, 9 N. W. 831, in denying a motion similar in its effect to the...