Lord v. Lord

66 Me. 265, 1877 Me. LEXIS 140

Opinion

Peters, J.

The petitioner alleges that his wife obtained a divorce from him by fraud. He “prays for a review of the same, that said decree of divorce .... may be annulled.” These words are demurred to for duplicity. The demurrer cannot prevail. The petitioner does not ask for a re-trial of the original libel upon the merits, and also that the proceedings of divorce be annulled. He evidently does not use the word review in the technical sense of a new trial under the statutes pertaining to review, but in the sense of a re-hearing or re-examination, as incidental to his motion to set the decree wholly aside as having been obtained by fraud. The kind of review asked for is, that the proceedings be annulled.

The demurrer must be overruled, and the respondent answer further. A decree pro confesso cannot, ordinarily, be made in a matter of divorce. The immediate parties are not the only ones concerned. The public are interested. Much depends upon the discretion of the court whether such a petition shall be granted or not. Clear evidence is required to show a fraud upon the court in obtaining jurisdiction, before a decree of divorce can be annulled. Holmes v. Holmes, 63 Maine, 420. Whiting v. Whiting, 114 Mass. 494. Holbrook v. Holbrook, Id. 568.

Demurrer overruled.

Despondent to answer further.

Appleton, C. J., Walton, Daneoeth, Yirgin and Libbey, JJ.s concurred.