Henderson v. Henderson

156 N.W. 245, 32 N.D. 520, 1916 N.D. LEXIS 133

• Court: North Dakota Supreme Court
• Decided: January 10, 1916
• Status: Published

Opinion

Burke, J.

Plaintiff and defendant intermarried at St. Paul, Minnesota, in 1909. In January, 1914, plaintiff, the wife, applied to attorneys at Jamestown, North Dakota, to prosecute proceedings against her husband for divorce. The defendant was personally served with ■ the summons and complaint at Wahpeton, North Dakota, on January 16, 1914, although he was at that time a resident of Minnesota. He made no further appearance in the action, and upon March 4, 1914, the wife appeared before the district court with due proof and obtained a decree of divorce upon t,he grounds of cruel and inhuman treatment and adultery with various and divers persons, unknown. The divorce allowed the wife alimony, suit money, and counsel fees, and also provided that either party might marry again after the expiration of three months. During the fourth month after the decree, defendant, the husband, married again, whereupon the wife made application to the trial court for an order to show cause why the decree of divorce should not be set aside. As a basis for this order she filed her affidavit to the effect that prior to the institution of the divorce proceedings her husband had represented to her that he had been married before and had not secured a divorce; that the former wife was making him trouble, and further represented to her that he had been arrested at Wahpeton, North Dakota, upon the charge of embezzlement; and that she, his wife, would not be allowed to testify upon his behalf. That for those two reasons he had requested her to obtain a divorce from him, so that he might avoid a possible charge of bigamy preferred by his first wife, and in order that she, plaintiff, might testify as a witness upon the trial wherein he was charged with embezzlement. She further alleged that he, her husband, represented to her that if she would secure the divorce and aid him in meeting the criminal charges aforesaid successfully, he would then remarry her. That it was in reliance upon said promises, and not through any desire for a divorce, that the proceedings had been instituted wherein she had obtained the said divorce. She further alleged that pursuant to this agreement she had deceived her attorneys in Jamestown, North Dakota, as well as the trial court, and had represented to him that she desired such decree, when in truth and in fact she wished only to aid her husband in his trouble. That, notwithstanding the husband’s promises to remarry her, he had married another woman, whom she has since learned and believes was an important witness for the state against her husband in the embezzlement case, and that the said marriage was undoubtedly brought about by her once-husband in order to prevent the said witness from testifying against him upon such trial.

Upon the strength of this showing the trial court issued an order to show cause why the divorce should not be annulled, and thé same was personally served upon the defendant within the state of Minnesota, of which he was a resident. Upon the return day, defendant was represented by counsel, who, appearing especially, objected to the jurisdiction of the trial court over defendant’s person and moved to vacate and set aside the service of the citation and order to show cause, upon the grounds that no legal service had been made upon the defendant, rvlm was a resident of the state of Minnesota and served therein. Upon this being overruled, the defendant, reserving all of the defendant’s rights, objections, and exceptions to the jurisdiction of the court as. aforesaid, moved the court to quash the order upon the grounds that the same was improvidently issued, and that the facts shown therein were insufficient to warrant the court in granting the same. This was also denied, whereupon plaintiff offered herself as a witness, and the defendant objected to the taking of any proof upon all the grounds hereinbefore mentioned. This objection was overruled, and the. plaintiff testified along the lines indicated by her affidavit. She was cross-examined by the defendant, who also introduced nine exhibits as evidence upon his own behalf. At the end of the testimony, defendant moved to strike out all the testimony offered, and renewed his motion to quash. These motions were denied, and the trial court entered an order setting aside, vacating, and canceling the decree of divorce. Defendant has appealed, urging the same objections made to the trial court. There seems to be no statutory authorization for such a service; but in order to end this litigation we will base, our decision upon the merits, and assume for the purposes of this opinion that it was before the court.

(1) The motion to quash should have been allowed. Taking the affidavit of the plaintiff as true, we find that at the time of the commencement of this action, she had good grounds for a divorce against, her husband upon the grounds of adultery and probable desertion. She did not desire the divorce, however, for her own sake, but did desire it in order that she (as she supposed) might become a witness and testify in her husband’s behalf in an action wherein he was charged with a crime. Whatever- was her motive, she did really desire a divorce and obtained it. To be sure, she relied upon the promises of the husband to remarry her after his difficulties had been met, and it was not until she learned that the husband did not intend to keep his promises that she found any fault with the decree that had been entered against her. It is evident that she cannot, after the remarriage of her husband, reopen the judgment which she herself obtained. Two L.R.A. notes cover the grounds so thoroughly that we will do little more than refer to them. In Karren v. Karren, 25 Utah, 87, 95 Am. St. Rep. 815, 69 Pac. 465, 60 L.R.A. 294, it was held as follows: “A woman who consented to a decree of divorce against her to enable her husband to obtain a grant of property cannot, after her husband had married another woman, have the decree annulled, although in consideration of her consent he promised to remarry her after the grant was procured and the decree was obtained by suppression of facts and false testimony. (Paragraph 1 of syllabus.)”

Following this case in the L.R.A. citation is a fourteen-page note summarizing all of the cases up to the year 1902. We quote briefly from the note at page 307: “As a general rule the party obtaining a divorce decree will not be relieved therefrom upon his application to set it aside, upon the broad principle that, having induced the court to render the judgment, he is estopped from afterwards attacking it, except of course for fraud upon himself, mistake or surprise.” In the case at bar, of course, plaintiff can claim neither surprise nor mistake, and the fraud practised upon her was not of the kind of which she could take advantage. Among the cases mentioned is Ficener v. Ficener, 8 Ky. L. Rep. 867, 3 S. W. 597, the court stating that the grounds for setting aside ordinary judgments at law or in equity do not apply to judgments for divorce where the parties have remarried or otherwise changed their status. In Champion v. Woods, 79 Cal. 17, 12 Am. St. Rep. 126, 21 Pac. 534, relief was denied to a wife who had obtained a decree of divorce and had carelessly stated that there was no property when in fact there was such property in existence. In the case of Olmstead v. Olmstead, 41 Minn. 297, 43 N. W. 67, the rule is stated that the fraud practised upon the wife must be something substantial. In that case the husband secured her signature to a paper by fraud. The wife did not know the nature of the signature until months later, when she found that she had in truth signed and verified a complaint for divorce which the husband had taken before a lawyer and had a suit carried on in her name without her knowledge. The Minnesota court set aside the judgment. Of course, the facts in the case at bar are altogether different, and we cite this case merely to show an instance of when release will be granted. In 51 L.R.A.(N.S.) 534, is a note continuing the subject down to the year 1914. It is sufficient to say that of all the cases cited there is no dissent from the rule announced, unless possibly the case of Keener v. Keener, which we have already mentioned. At 14 Cyc. page 271, the text says: “The party in whose favor a divorce has been granted cannot ordinarily have it set aside, unless the divorce suit was instituted without the knowledge or consent of the applicant.” Cases supporting this doctrine are found in the text and in the annotations.

That this is the law must have suggested itself to plaintiff’s counsel, because he says in his brief: “While there are some authorities on the brief of the appellant to the effect that where there is collusion and fraud, the court will allow the parties to remain where they have each placed themselves, yet there are well-defined exceptions to this rule. When the court can say that one of the parties is more innocent than the other, or has been the vicitm of a cruel wrong, and that party has acted with reasonable diligence in undoing the wrong, then the question as. to how far they may have misled the court becomes wholly immaterial,' and-the court is confronted with these two questions, viz., (1) Was the divorce procured in bad faith; or (2) Was it done for an ulterior purpose? And, if the latter, was that purpose to defeat the ends of'public justice ? In the case at bar we have tried to make it plain that Henderson was confronted with a charge that involved his entire future. Mrs. Henderson and the girl that subsequently became his wife were to be silenced. That silence became the basis of these proceedings. That the defendant lulled his wife into apparent security is evidenced by the fact that they left North Dakota together, went to a public hotel, and lived together as man and wife after the alleged divorce. That subsequently the defendant, in his correspondence, indicated clearly that he was holding out for the time being a false signal or hope to Mrs. Henderson. . . . Looking at the conduct of the defendant, in the first instance, we find that it is bad. His methods are dangerous to the administration of public justice. He was willing to commit a crime to save himseif from conviction for a crime. He was willing to lie whenever lies would best serve his purpose. He was willing to enter into a scheme wherever a scheme would carry, out a scheme. He was willing to contract a marriage in South Dakota, knowing at the time that the promise he had made to Mrs. Henderson false — lies that came from his lips. ??

There is nothing in the record that reflects any credit upon the husband, but that is not the issue. The wife concedes that she was willing to aid him in those unlawful purposes. That she was willing to obtain a divorce in her belief that that was necessary so that she might testify upon his behalf. She was willing to have this divorce entered and run her chances of a remarz’iage. Her testimony shows that she still believes the defendant was gzzilty of adultery at the time the decree says he was. She was aware of the nature of the step that she was taking. The divorce was not obtained by' any fraud practised upon hez*. She went into the szzit with her eyes open, relying upon the proznise of defendant that he would remarry her. After he had broken his proznise and had contracted another marzfiage, she, for the first time, attacks the decz’ee which she herself had obtained. Under those circumstances she has no standing in a cozzrt of eqzzity. As all of those things appeared upon her original application for relief, her application should have been denied. Certainly the motion to quash shozzld have been allowed. The order of the tzfial court is reversed and the decree of divoz’ce is ordered reinstated.