Sloan v. Sloan

• Decision Date: 28 March 1882
• Citation: 1882 WL 10262,102 Ill. 581
• Parties: NANCY A. SLOANv.WILLIAM SLOAN.
• Court: Illinois Supreme Court

102 Ill. 581

1882 WL 10262 (Ill.)

NANCY A. SLOAN

v.WILLIAM SLOAN.

Supreme Court of Illinois.

Filed at Ottawa Mar. 28, 1882.

WRIT OF ERROR to the Appellate Court for the First District;-- heard in that court on writ of error to the Superior Court of Cook county; the Hon. JOHN A. JAMESON, Judge, presiding.

Mr. GEORGE W. SMITH, for the plaintiff in error:

Courts of chancery will ordinarily apply the same limitation of time to bills of review that the statute applies to writs of error. Lyons v. Robbins, 46 Ill. 276.

This is the extent of the rule, and it is made for cases in which error upon the face of the record is alleged,--not for cases of fraud or concealment. There is no warrant for the broad assertion that a bill of review will not lie after the time when a writ of error could be brought, and the authorities do not sustain that position.

Mr. ROBERT A. CHILD, also for the plaintiff in error:

A bill of review may be brought within twenty years, (Adams' Equity, 417,) and it will lie--

1. To impeach a decree for fraud. Story's Equity Pl. sec. 426; Adams' Equity, 419; Cooper's Equity Pl. 97; Guerry v. Durham, 11 Ga. 9; De Lains v. Meek, 2 Greene, (Iowa,) 55; Hatch v. Fenby, 4 Md. Ch. 190.

2. On the occurrence of, or discovery of, new matter. O'Hara v. Shepherd, 3 Md. Ch. 306; Ridgeway v. Lovam, 3 Id. 303; Cochran v. Rison, 20 Ala. 463; Standish v. Rodley, 2 Atk. 178; Judson v. Shepherd et al. 75 Ill. 255; Cooper's Equity Pl. 91; Story's Equity Pl. 412.

3. It may be filed with or without leave of the court, and may be brought for fraud in fact or fraud in law. Allen et al. v. Hawley et al. 66 Ill. 164; Griggs et al. v. Gear, 3 Gilm. 2; Turner v. Berry, 3 Id. 541.

Equity will relieve against every species of fraud. Lewis et al. v. Lanphere, 79 Ill. 187.

The vacating and opening up a decree is discretionary with the court, where the court had jurisdiction of the parties to the original suit; but where proceedings have been taken without jurisdiction, it is the duty of the court to correct the record upon the first notice of the fact. Evans v. Clement, 14 Ill. 206; Crouch v. Crouch, 30 Wis. 667; Boyd's Appeal, 38 Pa. St. 241; People v. Dowell, 25 Mich. 247.

As to the power of courts to set aside decrees of divorce for fraud or imposition, even after a subsequent marriage: True v. True, 6 Minn. 458; Jackson v. Jackson, 1 Johns. 424; Pawling v. Bird's Exrs. 13 Id. 192; Borden v. Fitch, 15 Id. 121; McLaren's Exr. v. McLaren, 6 Wend. 567; Adams v. Adams, 51 N. H. 388; Graves v. Graves, 36 Iowa, 310; Crouch v. Crouch, 30 Wis. 667; Edson v. Edson, 108 Mass. 590.

Mr. IRA O. WILKINSON, for the defendant in error:

A bill of review will not lie to set aside a decree entered by consent of parties, unless the consent was obtained by fraud or mistake. Adams' Equity, 400; 2 Daniell's Chancery Pr. 1575; Flagler v. Crow, 40 Ill. 414; McDaniel v. James, 23 Id. 407; Armstrong v. Cooper, 11 Id. 540.

Whether filed for error of law, or for newly discovered matter, it should be filed as soon as it reasonably may be. Story's Equity Pl. sec. 423; Adams' Equity, 790, and notes; 2 Daniell's Chancery Pr. 1584-5. A bill of review will not lie after the time for bringing a writ of error. Story's Equity Pl. sec. 410, and notes; Puterbaugh's Chancery Pl. 259; 2 Daniell's Chancery Pr. 1580, and note; Lyons v. Robbins, 46 Ill. 276; Sale v. Pike, 54 Id. 292; Boyd v. Vandercamp, 1 Barb. Ch. 273; Jenkins v. Prewitt, 5 Blackf. 7; same case, 6 Id. 237.

Mr. JUSTICE DICKEY delivered the opinion of the Court:

The case shown upon this record is that of a bill of review, or a bill in the nature of a bill of review, brought by Nancy A. Sloan, of the State of Ohio, against William A. Sloan, of the State of Kansas. The bill was filed in the Superior Court of Cook county, August 25, 1879, seeking to annul and set aside, for fraud, a decree of divorce rendered in that court at its August term, 1872, granting to her a divorce from defendant. This bill seeking to set aside the former decree was heard at the November term, 1880, and, on hearing, was dismissed. On error to the Appellate Court for the First District the decree dismissing the bill of review was affirmed. The complainant brings the case here on error, for review.

The allegations of the bill upon which it is sought to set aside the decree of 1872 are, that complainant had no knowledge of the proceeding whatever, and never, in any manner, gave any authority to the lawyer who prosecuted in her name the suit for a divorce, and in her name procured the decree. The excuse alleged for the delay in bringing this suit is, that complainant had no knowledge of the fact that any divorce proceedings were ever had in this regard, until about one month before this bill was filed. All these allegations are denied in the answer, and it is also shown that some time in 1872 defendant married another woman in Iowa, and that they have two children, the fruits of the latter marriage.

It is a general rule that a bill of review will not be entertained, unless brought within the time allowed by statute for the suing out of a writ of error. In this case about seven years intervened after the entering of the decree of divorce before the filing of this bill. In the absence of some cogent reason to the contrary, this proceeding must be regarded as barred by mere lapse of time. The allegation of the utter ignorance of the proceedings can not in such case prevail, unless clearly and satisfactorily proven. Complainant herself swears very positively that she had no such knowledge and no suspicion of such proceedings, and many incidents of her conduct, proven as part of the current of affairs, seem to corroborate her statement. On the contrary, several witnesses swear positively that before the divorce proceedings she had presented to her, for her signature, a paper which she was told was a paper which, if...