State v. District Court of Sixteenth Judicial District in and for Custer County
| Decision Date | 22 March 1923 |
| Docket Number | 5267. |
| Citation | 214 P. 85,66 Mont. 496 |
| Parties | STATE EX REL. SPARRENBERGER v. DISTRICT COURT OF SIXTEENTH JUDICIAL DISTRICT IN AND FOR CUSTER COUNTY ET AL. |
| Court | Montana Supreme Court |
Application by the State, on the relation of Sarah A. Sparrenberger against the District Court of the Sixteenth Judicial District in and for Custer County and S.D. McKinnon, as Judge thereof for a writ of supervisory control. Writ issued.
Loud & Leavitt, of Miles City, for respondents.
According to allegations in the record, which, for the purpose of this application, we must assume to be true, relatrix and Charles P. Sparrenberger, hereinafter referred to as the wife and the husband, were married in 1902. Two children, now living, were born to them. The matrimonial domicile was in New York in 1910, at which time the husband deserted his wife and the children. He came to Montana, established a residence here and in 1916 began an action against the wife for divorce upon the ground of desertion. Summons having been returned by the sheriff, with return indorsed to the effect that the wife could not be found in Custer county or in the state of Montana, the husband made and filed an affidavit in the cause as a basis for its service by publication, in which he falsely and fraudulently recited that the wife last resided in the city of Philadelphia, Pa which was her last known post office address; the fact being that he well knew that his wife did not then reside, and had not at any time resided, in Philadelphia. He well knew his wife was then residing in the city of New York, knew her city address, and in fact, during the period of time when he was applying for a divorce in Custer county, he was communicating with his wife and their children. Upon the affidavit, publication of summons was made in accordance with the statute, and a copy of the summons and a copy of the complaint in the action were mailed to the wife at the city of Philadelphia. She did not receive these papers, nor did she have any knowledge of the publication. In due time the court heard the proofs in the action and entered a decree dissolving the bonds of matrimony theretofore existing between the husband and wife, restoring each "to the status of a single, unmarried person," according to the wording of the decree, which was dated in December, 1916. In 1918 the husband removed to North Dakota, where he has ever since resided. The wife did not learn of the decree of divorce until about the month of October, 1920.
The wife has at all times retained her residence in New York. In July, 1922, she commenced an action in the district court of Custer county for the purpose of setting aside and annulling the decree. In her complaint she alleged the foregoing facts, among others. It is conceded that her complaint states facts sufficient to warrant the relief sought. Summons was placed in the hands of the sheriff, but he returned it with his certificate that he was unable to find the husband in Custer county or in the state of Montana. Thereupon an affidavit for publication of summons was made and filed in behalf of the wife, in which it was recited that the husband resided outside of the state of Montana and in the town of Beach, N.D. Order of publication was made by the court, summons was published in a proper newspaper, and was personally served on the defendant in the town of Beach. That the statute was complied with in form is not questioned. The husband seasonably appeared specially in the cause for the purpose of moving the court to set aside and vacate the service of summons. Argument was had upon the motion, and the court after careful consideration, sustained it and refused to proceed further. Thereupon the wife made application to this court for the issuance of a writ of supervisory control; the object being to annul the order of the district court of Custer county in quashing the summons, and to procure an order directing the district court to proceed with the action.
Fraud being the arch enemy of equity, a judgment obtained through fraud practiced in the very act of getting it will be set aside by a court of equity upon seasonable application. Indeed, the power of a court of equity to grant such relief is inherent. Clark v. Clark, 64 Mont. 386, 210 P. 93; 15 R. C. L. 760, 762. The conscience of the chancellor moves quickly to right the wrong, when it is shown that through imposition practiced upon the court by a litigant an unfair advantage has been gained by him and thus it has been made an instrument of injustice. 15 R. C. L. 761; Dowell v. Goodwin, 22 R.I. 187, 47 A. 693, 51 L. R. A. 873, 84 Am. St. Rep. 842. This is conceded by learned counsel for the husband, but his contention is that, in the absence of personal service of summons upon the husband, this action cannot be maintained because, neither party being now a bona fide resident of this state, the marital status of the parties "which constitutes the res of the action is not before the court." This is said upon the theory that this action is in equity, and as "Equity acts in personam and not in rem," and, as there is no res upon which to act, the court may not proceed upon merely constructive service, that giving no jurisdiction. Counsel's assertion is too restricted. The power of equity has been extended so as to permit it to act in certain cases which are strictly in rem (16 Cyc. 134), one of which is the action for divorce.
The matrimonial domicile of the parties never was in Montana. It was in New York, and as the husband deserted the wife there he did not bring it with him to this state. Atherton v. Atherton, 181 U.S. 155, 21 S.Ct. 544, 45 L.Ed. 794; Haddock v. Haddock, 201 U.S. 562, 26 S.Ct. 525, 50 L.Ed. 867, 5 Ann. Cas. 1. But he established citizenship here and under the settled law that all governments possess inherent power over the marriage relation, its formation, and its dissolution, as regards their own citizens, this state had the right to adjudicate upon his marital status. Maynard v. Hill, 125 U.S. 190, 8 S.Ct. 723, 31 L.Ed. 654; Haddock v. Haddock, supra; Parker v. Parker, 222 F. 186, 137 C. C. A. 626.
The divorce action which the husband commenced in Custer county was a proceeding in rem (Black on Judgments [2d Ed.] § 803); the res being the marital status of the husband (Ellison v. Martin, 53 Mo. 575; Haddock v. Haddock, supra). The court had jurisdiction over the person of the husband who brought the action, and it had at least a colorable jurisdiction over the subject-matter of the action. Through fraud and by perjury which smells to heaven the husband tricked the court into entering a decree severing the marital bonds which bound husband and wife together. The fraud was upon the court as well as upon the wife.
That the court had jurisdiction to act upon the record before it is not questioned. The decree which the court gave him is fair upon its face; and while, under the doctrine of Haddock v. Haddock, in view of the fact that the matrimonial domicile of these litigants was in New York, the decree is not entitled to obligatory enforcement in the courts of a sister state by virtue of the full faith and credit clause of the Constitution, nevertheless it will be accorded full faith and credit by a great majority of the states upon the principle of state comity. Mr. Justice Brown, in Haddock v. Haddock, 201 U.S. at page 624, 26 S.Ct. 525, 50 L.Ed. 867, 5 Ann. Cas. 1.
By reason of the fraud practiced by the husband, the wife did not receive a copy of the complaint and summons in the action. Before she had any notice of the fact that a decree of divorce affecting her had been given by a Montana court the husband had removed to North Dakota. When...
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