Tuttle v. Tuttle

• Decision Date: 17 March 1921
• Citation: 181 N.W. 898,48 N.D. 10
• Parties: TUTTLE v. TUTTLE.
• Court: North Dakota Supreme Court

48 N.D. 10

181 N.W. 898

TUTTLE

v.TUTTLE.

Supreme Court of North Dakota.

Jan. 29, 1921.

Rehearing Denied March 17, 1921.

Syllabus by the Court.

A judgment rendered by a court of general jurisdiction, having jurisdiction of the parties and the subject-matter, imports absolute verity. As long as it stands, it cannot be attacked collaterally by any of the parties thereto, or those in privity with them.

As long as the former adjudication remains in force, the losing party cannot maintain an action against the successful party for obtaining the judgment by fraudulent and wrongful practices.

For reasons stated in the opinion it is held that the complaint in this case fails to state facts sufficient to constitute a cause of action, and that the trial court properly sustained a demurrer thereto on this ground.

On Petition for Rehearing.

Section 100 of the North Dakota Constitution provides: “In case a judge of the supreme court shall be in any way interested in a cause brought before said court, the remaining judges of said court shall call one of the district judges to sit with them on the hearing of said cause.” It is held, in construing this section, that a party litigant is not entitled to have one of the members of the Supreme Court adjudged disqualified and to have the remaining members call a district judge to sit in his stead on the ground that the member sought to be disqualified, in a former action between the same parties, has expressed an opinion, upon the record there presented, which bears upon the rights of the parties in this action.

Appeal from District Court, Kidder County; Graham, Special Judge.

Action by Louise J. Tuttle against William P. Tuttle. From order sustaining demurrer to the complaint, plaintiff appeals. Order affirmed.

Grace, J., dissenting.L. A. Simpson, of Dickinson, and S. E. Ellsworth, of Jamestown, for appellant.

Lawrence & Murphy, of Fargo, for respondent.

CHRISTIANSON, C. J.

In this action the plaintiff seeks to recover damages in the sum of $300,000, which she alleges she has sustained by reason of a certain judgment, wrongfully obtained against her by the defendant. The defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained, and the plaintiff has appealed.

The sole question presented on this appeal is whether the trial court was correct in rulingthat the complaint did not state facts sufficient to constitute a cause of action. The substance of the complaint is as follows:

That on and long prior to October 23, 1907, the plaintiff was the wife of the defendant; that on or about that date the defendant, claiming to be a resident of the state of North Dakota, commenced an action in divorce against the plaintiff in the district court of Burleigh county, in this state, alleging as grounds of divorce extreme cruelty and desertion; that on being served with the papers in such divorce action the plaintiff employed three firms of attorneys, one in Chicago, Ill., one at Jamestown, N. D., and one at Bismarck, N. D.; that said attorneys in due time, in her behalf, interposed an answer denying the averments of the complaint, and alleging by way of cross-complaint and counterclaim that the defendant had been guilty of extreme cruelty towards the plaintiff, and had willfully and without cause continued to live apart from her since July, 1905; that in said cross-complaint and counterclaim it was further alleged that the plaintiff was without means; that the defendant was possessed of property of the value of about $1,000,000; that all of said property had been accumulated during the married life of plaintiff and defendant; that in said answer and cross-complaint the plaintiff prayed as relief “that she be granted temporary alimony during the progress of said action to be used as a means to pay counsel fees and procure the evidence necessary to properly defend the action brought by defendant and to prosecute the counterclaim and cross-complaint interposed by plaintiff herself, that she be granted an absolute divorce, and that she be awarded her just and equitable part of the property accumulated by the plaintiff and the defendant, and for such other and further relief as to the court seems just and equitable.”

That at the time of the service of said answer, and at the time said divorce action was at issue, plaintiff was prepared with strong, competent, and credible evidence to substantiate all the allegations of said answer, counterclaim, and cross-complaint; that all of said allegations were true; “that said action in divorce was fully at issue and came regularly on for trial at Bismarck, N. D., on the 8th day of December, 1908, before” the “then presiding judge of said district court, and that plaintiff was ready for trial and present at said date with her attorneys as aforesaid. Depositions of a number of witnesses in support of the allegations of plaintiff's counterclaim and cross-complaint in said action had been taken and filed, and there were present at said trial a number of other witnesses on plaintiff's behalf. Commencing on said 8th day of December, A. D. 1908, for a period of four days said trial proceeded, and plaintiff's witnesses were carefully examined, and all material information known to them presented to the court. A number of witnesses were called and examined in defendant's behalf, and on or about the 11th day of December, 1908, the entire case was submitted to said Judge Winchester for determination.”

That prior to said trial the defendant had willfully, fraudulently, and unlawfully colluded with and corrupted and bribed the presiding judge to decide and determine the material issues in the action in defendant's favor; that prior to such trial the defendant had paid to said judge the sum of $1,500, and that it had been arranged and agreed between said defendant and said judge that upon the conclusion of the trial a decree should be entered in favor of the defendant; that the said defendant had also approached, tampered with, and influenced (W. F. Cochrane) one of plaintiff's attorneys to discharge plaintiff's cause after the decision of the trial court and to advise the plaintiff not to appeal from said decree; that at the conclusion of the trial the judge, acting in accordance with the understanding between him and the defendant, made findings of fact and conclusions of law, and ordered the entry of decree in said action in which it was found that all the allegations of defendant's complaint were abundantly supported by the evidence; that his application for a divorce was sustained upon all the grounds alleged in the complaint, and that defendant should be granted a divorce upon the grounds stated in his complaint; that, “in accordance with said findings of fact, conclusions of law, and order for judgment made and entered as aforesaid, a decree of said district court was entered of record on the 27th day of January, A. D. 1909, and is now of record therein wholly unreleased, unmodified, and unchanged.”

That the evidence offered by the plaintiff on the trial of such divorce action “was in all respects abundantly sufficient not only to refute and defend against disputed allegations of defendant's complaint, but to fully maintain the allegations of plaintiff's counterclaim and cross-complaint;” that in deciding the case the trial judge, influenced by defendant's corrupt bargaining, disregarded the evidence introduced by the plaintiff, and gave no weight or credit thereto, and made his findings, conclusions, and order for judgment, not in accordance with the weight of the evidence or the right and justice of the cause, but in conformity with his previous arrangement with the defendant; that after the entry of said decree her attorney, one W. F. Cochrane, was left in entire charge of the case; that said attorney disparaged and discouraged an appeal; and that, when an appeal to the Supreme Court was ordered by the plaintiff, said attorney, “in conformity to the corrupt influence, promises, and bribery of said defendant, proceeded so indifferently and in a manner so slack and negligent” that said appeal was dismissed by the Supreme Court without a review of the merits of the said appeal.

“That, if said action had been tried and disposed of justly and impartially without the exercise of undue influence upon the presiding judge of said court, or upon the plaintiff's attorney, she has reason to believe and does believe that, properly placed upon a preponderance of the evidence introduced, plaintiff would have been given a divorce from said defendant and awarded a proportion of said property accumulated during the marriage of plaintiff and defendant to the sum of at least $300,000; that the ground for divorce in her favor set out in her counterclaim and cross-complaint would have been sustained, and the testimony of plaintiff and of her witnesses would have been held to be reputable, credible, and truthful.”

“That by the findings of fact of said court, its conclusions of law, and its order for judgment induced by the wrongful and fraudulent conduct of said defendant, plaintiff has been caused great humiliation, shame, and insult, has been caused to suffer great distress of mind, has been deprived of valuable property rights and interests in the value of the sum of $300,000, and has sustained loss, deprivation, and injury to her damage in said sum.”

“That said wrongful, fraudulent, and collusive conduct of defendant and his bargaining, tampering with, and bribing the presiding judge upon said trial and the attorney acting for plaintiff was not brought to the notice or knowledge of plaintiff until about the 28th day of January, A. D. 1919, and that with all diligence, after being credibly informed of the circumstances constituting said fraud and collusion, plaintiff brought this action for the purpose of asserting her rights against said defendant and obtaining damages for...