Stephens v. Stephens

• Decision Date: 02 March 1950
• Docket Number: 7 Div. 2
• Parties: STEPHENS v. STEPHENS.
• Court: Alabama Supreme Court

Page 153

45 So.2d 153

253 Ala. 315

STEPHENS v. STEPHENS.

7 Div. 2.

Supreme Court of Alabama.

March 2, 1950.

A. R. Powell, Jr., of Andalusia, and W. T. Starnes, of Pell City, for appellant. Earl McBee, of Birmingham, and T. Eric Embry, of Birmingham, for appellee.

SIMPSON, Justice.

Bill in the nature of a bill of review to set aside a decree of the circuit court, in equity, of St. Clair County, which decree dissolved the bonds of matrimony existing between the parties to this cause and granted appellee, J. E. Stephens, a divorce from appellant, Edith C. Stephens, on the ground of adultery.

This is the second appeal. The first appeal, affirming a decree overruling demurrer to the bill, is reported as Stephens v. Stephens, 251 Ala. 431, 37 So.2d 918. That case held, among other things, that since from its allegations the bill showed that in the proceedings leading up to divorce the appellant here, defendant in that proceeding, was duly represented by guardian ad litem appointed by the court, no collusion or conspiracy on the part of the guardian ad litem having been charged, it was not made to appear that the divorce decree was otherwise than binding in that regard, citing Cunningham v. Wood, 224 Ala. 288, 140 So. 351; Edmondson v. Jones, 204 Ala. 133, 85 So. 799.

Following that opinion and before issue joined and testimony taken, the appellant amended her original bill of complaint to the effect that when the testimony to support the bill for divorce was taken before the commissioner, no notice of the taking of such testimony was given to appellant's guardian ad litem; that the said guardian ad litem had no knowledge or notice that any testimony was to be taken, was not present before the commissioner when the same was taken, and received no notice of any kind of the submission of the cause for final decree, nor did he prepare or file any note of submission in the cause, and that the final decree was rendered on such testimony without the knowledge or consent of said guardian ad litem.

The amendment further averred that the said guardian ad litem had no opportunity to confer or discuss the said divorce proceedings with appellant, that he was not even acquainted with her location or place of residence, and that the testimony was taken two days after his notice of appointment as such official and at a time when the said Edith C. Stephens was a non compos mentis confined in Bryce Hospital, Tuscaloosa, Alabama, some 120 miles from the residence of the guardian ad litem and ninety-two miles from Pell City, Alabama, where the testimony was taken.

The concluding paragraph of the amendment makes the foregoing as a basis of the allegation that appellant had been denied her day in court and thus denied due process of law, as guaranteed by the constitutions of the state and of the United States.

The court sustained the demurrer to the bill as amended and proceeded to a hearing on the other aspect of the bill relating to other allegations of fraud noticed in the first opinion, and on final hearing concluded against the appellant on that issue.

The sustaining of the demurrer to the amended bill is assigned as error on this appeal and on a painstaking consideration of the record in connection with the governing authorities, we have concluded that the learned trial court was in error in this ruling.

The authorities are agreed that: 'If the complainant was a non compos mentis when he was served with process in the suit for divorce, and when the cause was tried and the decree and orders therein were made and enrolled, the decree and orders are due to be set aside since it is confessed that he was not represented by guardian ad litem or general guardian. Cunningham v. Wood, 224 Ala. 288, 140 So. 351; Dawson v. Haygood, 235 Ala. 648, 180 So. 705.' Farrell v. Farrell, 243 Ala. 389, 391, 10 So.2d 153, 155.

And the same rule must necessarily apply where, though there has been a guardian ad litem appointed, his representation is ignored and the proceedings against his ward are thus transacted ex parte without notice to him.

The contrary ruling of the trial court on the question seems to have been rested on the understanding that the first Stephens Case, supra, was controlling to that result; that the added allegations were merely an elaboration of the original allegations as regards the guardian ad litem's status in the case. But that is not the case, since the first decision was rested on the absence of allegations as regards the matter here considered and it was there pointed out that from aught appearing (construing the allegations most strongly against the pleader) the plaintiff here was 'represented by a guardian ad litem appointed by the court', etc. [251 Ala. 431, 37 So.2d 921] The amendment materially changed this allegation, the effect of which was that the defendant, a non compos mentis, was not represented by her duly appointed guardian ad litem, but to the contrary, the proceedings were transacted ex parte without his notice or knowledge and without having been given an opportunity to represent his ward by reason of the improper manner of the procedure. A strict mandate of the law was violated in not giving the requisite written notices to the appellant's attorney of record, her guardian ad litem, of the time and place of the examination of the witnesses, Equity Rule 55, Code 1940, Tit. 7 Appendix, and of the submission of the cause for final decree, Equity Rule 60, and from then on to conclusion the bill as amended shows that what might be termed side bar proceedings were transacted without notice or knowledge of the appllant's legal representative, culminating in the final decree of divorcement. Conceding these allegations to be true, as must be on demurrer, it would indeed be a reflection upon the judicial system and regrettable beyond measure should a tribunal of justice, to which litigants look for protection, be impotent to relieve from such alleged oppression. The authorities are clear that relief is available to one in such a circumstance, who is free from fault in the premises and has a meritorious defense.

A court of equity, as a general proposition, has the undoubted right to set aside a judgment or decree procured through either fraud, accident or mistake when the complaining party has a meritorious defense and is without fault in its rendition. 5 Pomeroy, Equity Jur., 2d Ed., 4670, § 2068.

So, whether the alleged omission to follow the law in the taking of the testimony, the submission of the cause and procurement of the decree, thus denying appellant her day in court and right to be heard, be termed constructive fraud, Cadick Milling Co. v. Merritt, 246 Ala. 175, 19 So.2d 720; Cunningham v. Wood, 224 Ala. 288, 140 So. 251, or extrinsic mistake, Hanover Fire Ins. Co. v. Street, 228 Ala. 677, 154 So. 816; Olivera v. Grace, 19 Cal.2d 570, 122 P.2d 564, 140 A.L.R. 1328, or just plain accident, the end result was the same and one which the equity court may undertake to correct if seasonably applied to. For cases from other jurisdictions see citations in 140 A.L.R. 1334.

We have not overlooked the general rule as announced in our cases that there must be actual fraud--an intention to take advantage--on the part of the person chargeable to authorize equity, generally, to set aside a concocted decree. Farrell v. Farrell, supra; Graves v. Brittingham, 209 Ala. 147, 95 So. 542; McDonald v. Pearson, 114 Ala. 630(5), 21 So. 534. But as regards decrees against persons non compos mentis, recent decisions of this court have not made an intention to defraud essential to relief, the determining criterion being whether the defendant was in fact non compos mentis and if so, and a judgment or decree has been rendered against him without guardian ad litem or general guardian, such judgment or decree is subject to be set aside as for fraud. Cadick Milling Co. v. Merritt, supra; Cunningham v. Wood, supra; Farrell v. Farrell, supra; Wilkerson v. Wilkerson, 230 Ala. 567, 161 So. 820. See also 5 Pomeroy Eq.Jur. (2d Ed.), § 2070, p. 4673; United States v. Throckmorton, 98 U.S. 61, 25 L.Ed. 93; 140 A.L.R. 1334; 44 C.J.S., Insane Persons, p. 326, § 151; 32 C.J. p. 790; 28 Am.Jur. 748, § 118.

The Street Case, supra, is very analogous, where it was held that the fraud, accident or mistake...