Peyton v. Peyton

68 P. 757, 28 Wash. 278, 1902 Wash. LEXIS 486

• Court: Washington Supreme Court
• Decided: April 11, 1902
• Docket: No. 4157
• Status: Published

Opinions

The opinion of the court was delivered by

Hadley, J.

— Appellant and respondent were married in Illinois in the year 1869. They began life together as husband and wife in Danville, Illinois, where they resided for about two years after their marriage. They then removed to Kansas, where they remained for a short time, and later went to Colorado, where they continued to reside until 1878. During the latter year respondent closed out his affairs in Colorado preparatory to seeking a location elsewhere. It was arranged that appellant should return to Illinois on a visit, where, as she understood, she was to remain until respondent should select a new location, and that she would then go to the place so selected by her husband. On her trip from Colorado to Illinois, appellant was accompanied by her husband as far as the city of St. Louis, at which place they separated; the appellant proceeding on her journey, and the respondent remaining for,a few days in St. Louis. They did not meet again until the year 1886. A few days after their separation in St. Louis, appellant received a letter from her husband written at the latter place, and not long after another written from New York City. The last mentioned letter was written in November, 1878, and appellant did not again receive a letter from him for more than three years. Appellant was visiting friends at Champaign, Illinois, immediately following her trip aforesaid; and the day before Christmas, 1878, she received a letter from respondent’s brother, who resided at Danville, Illinois, in which he informed her that her husband had left her with the intention of not living with her again as her husband. In due time appellant returned to Colorado, and resided in the city of Denver. After the lapse of some three years as aforesaid, she occasionally received letters from respondent, which were forwarded to her by respondent’s brother, but which did not disclose the whereabouts of respondent.

Meantime respondent had come to the then territory of Washington, and had located in Spokane county. lie engaged in mercantile and other business, and was known in business and social circles as “Gr. H. Morgan.” He was generally recognized in the community as an unmarried man, and was supposed to be a bachelor. He continued to' do- business in Spokane county, and had acquired some farm property, and also some real estate in what was then Spokane Halls. In 1885 he was living in the city of Spokane Halls, now Spokane. During that year he caused to be instituted against appellant a suit for divorce. The suit was brought in the name of Isaac N. Peyton, as plaintiff, in the district court for the fourth judicial district •of Washington Territory, holding terms at Goldendale, in Klickitat county. Such proceedings were had in said cause that on the 17th day of October, 1885, a decree was entered therein which "declared the marriage relation between appellant and respondent dissolved. The TIon. George Turner was the presiding judge of the said court, by whom the decree was entered. Judge Turner resided in Spokane at the time, and personally knew the plaintiff in that case, —the respondent here, — but knew him as G. H. Morgan, commonly called “Colonel Morgan,” and did not know him as Isaac K. Peyton. Respondent at no time appeared before the said judge during the pendency of said cause. A default order was entered against appellant upon the motion of respondent’s counsel, and by the same order Carroll B. Graves, a member of the bar, was appointed as referee to take the testimony, make findings of facts and conclusions of law, and report the same to the court. Respondent, together with other witnesses, appeared and testified before the referee, but respondent was not known to the referee as being the same person known as G. H. Morgan in Spokane. The referee reported the testimony in writing to the court, together with his findings and conclusions, to the effect that the allegations of the complaint were sustained, and that the respondent was entitled to a decree of divorce. Thereafter the court confirmed said findings and conclusions, and entered a decree as aforesaid. Respondent’s attorneys in the divorce suit were Griffitts & Graves, of Spokane. The case was managed exclusively by Mr. Griffitts, of that firm. P. H. Graves, a member of the firm, knew that an action wras pending in Klickitat county, entitled “Isaac K. Peyton v. Helen M. Peyton,” and also knew that Ms partner had attended the trial thereof, but he did not know that the said Isaac H. Peyton was the same person whom he knew in Spokane as “G. H. Morgan.”' It appears that the only persons in any way connected with the case, aside from respondent, who knew that the plaintiff therein was the same person known in Spokane as G. PL Morgan, were Mr. Griffitts, the attorney, two brothers of respondent, and a Mr. Bennett: the last three mentioned having’ been present at the time of the hearing before the referee, and some, if not all, of them having testified as witnesses.

On the 4th day of November, 1885, following the date of the entry of the decree aforesaid, respondent contracted a marriage with Mrs. Victor Á. Houghton, a widow who resided in Spokane: The marriage was contracted by respondent in the name of G. H. Morgan, and was formally celebrated on said date. The marriage ceremony was conducted by a clergyman in the presence of witnesses, and under authority of a marriage license theretofore duly issued. Mrs. Houghton at the time of the marriage believed respondent to be an unmarried man, and had no knowledge of the divorce proceedings heretofore mentioned. She also believed respondent’s real name to be G. II. Morgan, and was in no way advised to the contrary. Immediately following said marriage, respondent and said Victor Houghton Peyton left Spokane for a trip to California. They sojourned in California for some months, having in view the benefit of the respondent’s health; he not having been in vigorous health when they left Spokane. While they were still in California, the appellant, who had continued to reside in Denver, learned that the man known in Spokane as G. H. Morgan was in fact Isaac 1ST. Peyton, and she thereupon came to Spokane; arriving there on the 16th day of March, 1886. Soon thereafter she caused to be instituted against respondent an action for divorce; the cause being entitled “Helen M. Peyton v. I. 1ST. Peyton, alias G. H. Morgan,” and was brought in the territorial court of the fourth judicial •district, for Spokane county. She also caused a warrant to be issued for the arrest of respondent on the charge of bigamy. About this time respondent and Victor Houghton Peyton returned to Spokane from California, when respondent was served with, process in the said divorce suit, and was also placed under arrest on said charge of bigamy. Respondent immediately gave bail for his appearance in the criminal proceeding, and employed the firm of Houghton & Graves as his attorneys therein, and also in said divorce suit. Judge Houghton, of said firm, was a brother of the deceased husband of Victor Houghton Peyton and his wife was also a sister of the latter. Said Victor Houghton Peyton, on learning of the above mentioned proceedings, and the facts thereby made known, was much distressed concerning her relations in the premises. She at once sought the advice of her said brother-in-law, and also of his law partner; desiring to know if she was or was not the lawful wife of respondent. It was her purpose not to live longer with respondent as his wife if she should be advised that she was not in fact his wife. She then learned for the first time of the former divorce proceedings in Klickitat county, and was advised by said attorneys that the decree! entered therein had dissolved the marriage relation formerly existing between appellant and respondent, and that her marriage with respondent was a lawful one. Respondent about this time left Spokane, and went to Chicago, where he remained for some months; and said Victor Houghton Peyton, relying in good faith upon the aforesaid advice, joined respondent in Chicago. She continued tO' live with him as his wife-, and in the month of August- following a child was born to' them.

Meantime appellant had also filed a petition in the former divorce suit of Isaac H. Peyton v. Helen M. Peyton, which was brought in Klickitat county as aforesaid, in which petition she sought to vacate the decree rendered in that cause. The petition recited as grounds for the attack upon the decree that respondent was not a resident of Klickitat county at the time the suit was brought; that he had procured said decree by fraud, in that the allegations of his complaint were untrue, and the testimony given in support thereof was false ; that he had concealed his whereabouts from her, and had adopted an assumed name for that purpose; that at the time of the institution of the suit he knew her place of residence, but that no service of process had been made upon her, and she had no notice of the institution of the suit, or the entry of the decree. At the time of the presentation of the petition to vacate said decree, she appeared in said cause; and moved for a change of venue thereof to Spokane county, which motion was granted, and the cause was transferred tO' Spokane county in the month of April, 1886, for further proceedings.

In the proceedings instituted by appellant as herein stated, she was represented by Hash & Kinnaird, attorneys of Spokane. During the months following there was much litigation in said proceedings, in the way of motions and applications of various kinds. Appellant sought to compel respondent to pay alimony, in the way of attorney’s and court costs, and also' for her own maintenance pending the proceedings. The court ordered such alimony to be paid, but respondent being in Illinois, and without the jurisdiction of the court, the order was not enforced. Thus the litigation proceeded until the month of Decernber, 1886. . During that month respondent returned to Spokane. The then district court was in session about that time, and it was expected that the trial on the charge of bigamy would occur at said term. At the spring term of court following respondent’s arrest, a default had been entered for his failure to. appear, and the forfeiture of his bail bond was declared. But upon his appearance at the next term the default and forfeiture were by the court set aside. Appellant was then in Spokane, and was not desirous of pursuing the charge of bigamy against respondent, but it was not known to her or her counsel whether the prosecuting attorney and the court would consent to the dismissal of the criminal case. It ivas, however, ascertained that, for reasons which were deemed satisfactory no objection would be interposed to the withdrawal of the case, and it was afterwards accordingly dismissed. About the time it was ascertained that the criminal case would be dismissed, negotiations were in progress between appellant’s and respondent’s counsel looking to a settlement of the aforesaid litigation between them. These negotiations led up to an interview in the law office of Houghton & Graves in the evening of December 12, 1886, a.t which interview appellant was present, together with Judge Hash, one of her counsel. The details of the pending negotiations were in some measure then discussed, and appellant expressed herself as satisfied and pleased with the result. It was agreed that, as a result of the proposed arrangement, appellant was to receive from respondent the sum of $3,000, and that upon the following day they should meet at the same place, and sign and deliver the papers necessary to carry the arrangement into effect. Accordingly upon the following day they met at the office of Houghton & Graves. Appellant was present during the entire time, together with Judge Xinnaird, one of her counsel. Judge Nash, another of her counsel, was present at least a portion of the time. Respondent was present, together with his counsel, Houghton & Graves. Colonel Turner and Mr. Forster were also there as eónnsel representing clients who had litigation against respondent, and they were seeking to guard their clients’ interests as far as they might become involved in' any adjustment of property matters between appellant and respondent. Other counsel were also present a part of the time for a like purpose. At that time a general power of attorney from appellant to- respondent was executed by her, its purpose being to enable respondent to cure titles to property he-had previously conveyed. There were also certain deeds executed by appellant and respondent to adjust the property rights of others. Mr. F. H. Graves testified to the contents of a certain written contract which he says was also there signed by both appellant and respondent. He also testified that it is his recollection that the contract was not executed in duplicate, and that the single copy was delivered to Judge Houghton, his law partner. Mrs. Alice Houghton, widow of said Judge Houghton, — he having ■died since the date of said alleged delivery to him, — testified that after the death of her husband she found such a written contract among the private papers of the deceased. Another witness said she read it over to him, although he did not examine it and read it himself. Mrs. Houghton further testified that persons applied to her, in behalf of respondent, desiring her to deliyer the paper to respondent. Victor Houghton Peyton, whom respondent had married as aforesaid, was a sister of the witness, but witness testified that she and respondent entertained a mutual dislike of each other, and that she would not gratify respondent by sending liim the paper; that she desired an interview with him, and required that he should come to her himself, if he wished to procure the paper: that afterwards, “in a little bit of pique and temper I destroyed it, and destroyed every other bit of paper I had with it which bore on this case.” She testified that the paper was signed by respondent, and purported to be signed by appellant, whose signature she did not know, but that the signature appeared to be that of a woman; that it was also signed by Houghton & Graves and Hash, Kinnaird & Murray, as attorneys for the respective parties. The witness Graves aforesaid testified that the contract recited, in substance, the following’: That the parties had theretofore been husband and wife; that a decree of divorce had been entered in Klickitat county, which decree was appropriately referred to; that thereafter appellant had commenced proceedings to vacate and set aside said decree; that there had never been any settlement of the property rights between the parties; that respondent was to pay appellant $3,000 in full and complete settlement of all her interests in the community property of the two parties, and in consideration of said $3,000 she was to abandon her contest as to the validity of that decree; that it was stipulated that the decree was valid, and that the grounds upon which it was assailed in the petition to vacate could not be sustained by appellant, and that it was to be abandoned; that the payment of the $3,000 was to be evidenced by notes, and that, if those notes were not paid when due, appellant might withdraw from the contract and resume the litigation; that if the notes were paid the terms of the contract were to be binding upon'the parties, and upon their heirs, successors, and assigns; that the attorneys for the respective parties should at once, or as soon as convenient thereafter, and as soon as the business of the court would permit, see that the necessary orders, judgments, and decrees were taken and entered to carry out the said contract in its letter and spirit; that the divorce suit brought by appellant against respondent should be dismissed. The witness further testified that he thought the contract contained a provision that another suit should be brought, but at all events that it was agreed between counsel for the respective parties that the court did not have jurisdiction in the Klickitat county divorce case to enter a decree concerning the property subsequent to the divorce decree, and that, if a decree concerning property rights were entered in that case, it would necessitate opening up the divorce decree, and that respondent would not consent to that, because he had been married, and a child had been born meantime; that it was finally agreed that a new suit should be inst-itrrted, in which it should be alleged that the decree of divorce did not make any provision for the disposition of the community property; that under the statute at that time the court might award a divorce without the disposition of the community property, or it might make a disposition of it; that allegations should be made showing what property respondent possessed; and that there should be a stipulation that appellant should take an in solido decree for $3,000 in bar of all claim to the community property. Other witnesses did not testify as to the said written contract, but Colonel Turner and Mr. Forster testified that the substance of the agreements and understandings then arrived at was as above stated. Appellant testified that she signed no such written contract; and Judge Kash, one of her then counsel, testified that, if she did do so, it was not when he was present. The witnesses seem generally to agree, however, that Judge Xash was not present nearly all the time on that day, and that his partner, Judge Kinnaird, was present during the entire time, and personally superintended all details in behalf of appellant Judge Kinnaird was dead before the time of trial of this cause, but a number of witnesses testified to the fact of his continued presence there, and of the part he took in behalf of appellant. They also identified his signature to various papers signed by him as appellant’s counsel in forwarding the details above set forth, and also stated that he was a man of the highest personal and professional integrity.

In pursuance of the agreements and stipulations then made, notes aggregating $3,000 were executed by respondent to appellant, which were afterwards all paid. On the following day (December 14, 1886), appellant left for Denver, where she continued to reside, and did not return to Spokane until in the year 1900, after this suit, was brought. Soon after the time of the completion of the negotiations aforesaid, the attorneys of the respective parties proceeded in the manner following: On the written stipulation of counsel filed in the case, the divorce suit brought by appellant against respondent in Spokane county was dismissed. The stipulation was signed by Hash, Kinnaird & Murray, as attorneys for the plaintiff in that suit (the appellant here). On another written stipulation filed in the Klickitat county divorce suit, the petition of appellant to vacate the decree of divorce in that case was dismissed, and an order for the payment of alimony theretofore entered was set aside. The stipulation was signed by Hash & Kinnaird as attorneys for the de^ fendant in that action (the appellant here). The stipulation recited the following:

“It is hereby stipulated by and between plaintiff and defendant that said defendant has secured all property rights of plaintiff to which she is or at any time has been entitled; that the decree of divorce heretofore entered in this cause in favor of said plaintiff and against defendant is valid and legal and that the petition of plaintiff filed herein to vacate the same cannot he maintained, and that said petition shall he dismissed by said court and he declared by such order of dismissal to he a bar to any further proceedings by defendant against said decree of divorce or on any or all of the matters allegedinsaidpetition; that the order of alimony herein be vacated and plaintiff pay the court costs of said petition and proceedings thereon.”

A new action was also commenced in Spokane county, entitled “Helen M. Peyton v. Isaac iST. Peyton”; the complaint reciting, in substance, the following: That the parties were married and separated as hereinbefore mentioned; that, without the knowledge or consent of appellant, respondent had acquired and sold large amounts of property; that the property so acquired and sold was community property, and that appellant never joined in the sale thereof, or agreed thereto, and had no' knowledge at the time that the same was sold; that appellant never received any of the proceeds of the sales of the said community property, but the proceeds were from time to time invested in other property; that respondent then owned and possessed certain property, which was particularly described; that appellant remained the wife of respondent from the time of their marriage until the lYth day of October, 1885, when they were divorced without any settlement of the property rights, and without any division of the community property. The complaint concludes with the prayer that the community rights of appellant be established and fixed, and that a decree he entered granting to her such portion of said property as she is by law entitled to, or that in lieu thereof, and in lieu of all her interest in and to any and all of said community property in the territory of Washington, she he allowed a sum in gross, to be fixed by the court, and that, when paid, such sum to be in lieu of, and in full satisfaction of, all appellant’s rights and interests in the community property of appellant and respondent. The above complaint was signed by Hash, Kinnaird & Murray, as attorneys for the plaintiff therein (appellant here), and was verified by appellant herself over her own signature, and sworn to before J. M. Kinnaird, a notary public (one of her counsel), on the 13th day of December, 1886. Thereafter an answer to the complaint was filed by respondent, admitting certain allegations therein, and denying others not material to be mentioned here. Soon after the following written stipulation was filed in said cause:

“It is hereby stipulated and agreed that judgment herein upon the pleadings may be rendered in favor of the plaintiff for the sum of $3,000, and that said judgment shall he taken and considered as the full measure of plaintiff’s interest in the property described in her complaint herein, and in lieu of any and all interest, or claim she may have had upon the property of defendant under the laws of Washington Territory, by virtue of the relation of husband and wife heretofore existing between said plaintiff and said defendant.”

The stipulation was signed by Hash, Kinnaird & 3Iur-ray as attorneys for the plaintiff in that action (appellant here). In pursuance of the above stipulation, on the 20th day of December, 1886, the court entered a decree in accordance with the terms of the stipulation. After reciting certain facts, and finding that appellant was entitled to a judgment in the gross sum of $3,000, the decree concludes as follows:

“It is further ordered, adjudged, and .decreed that, upon the payment or satisfaction of this judgment by the defendant, the community property mentioned and do-scribed in plaintiff’s complaint shall belong to the defendant as of his own sole and separate estate, and in that event said plaintiff shall he divested of all interest in or to any community property now or heretofore owned by defendant, and barred from claiming or farther demanding from defendant,. or any person claiming by, through, or under him, any interest in any property real or personal, and to which she may have been entitled under the statutes of Washington Territory by virtue of the reflation- of husband and wife heretofore existing between said plaintiff and the said defendant, it being the intention of this decree to give the plaintiff said sum of $3,000 in lieu of her interest in the community property now or heretofore owned by defendant, and upon the payment of said sum to vest the interest in said property of -plaintiff in the defendant in his own sole right, and to- be considered as of his separate estate, and freed from any claim of plaintiff because of the relation heretofore existing as aforesaid.”

Following the events heretofore outlined, respondent and Mrs. Yictor Houghton Peyton returned to Spokane, and thereafter continued to- reside together as husband and wife. Two other children were horn to them, who are now lads approaching young manhood. 'Respondent and the mother of said children have at all times been received and recognized in social, church, and business circles as husband and wife, of which facts the appellant had knowledge. During the period of thirteen years following the proceedings which have been heretofore described, she took no steps to question the validity thereof. Occasionally, during the time she wrote to respondent and asked him to assist her financially. Respondent replied to some of the letters, aiul on at least one occasion sent her the stun of $75, but at no time did he concede that lie was under any legal obligation to contribute to- her support. Beginning with the year 1890, and in the years following, respondent acquired wealth rapidly through mining investments and other sources, and it is conceded that at the time of the commencement of this action he possessed property of the value of $1,000,000 or more.

The foregoing extended recital of facts gathered from the evidence in this case has been deemed advisable in order that the relative status of the parties and of all others involved therein may fully appear, as it existed prior to and at the time this action was begun. The present action was brought by appellant against respondent for separate maintenance, and she asks a decree declaring the divorce decree entered in the Klickitat county case to be void and of no force or effect. The complaint is very long, and recites many of the matters heretofore stated, including the stipulations, judgments, and decrees already mentioned. She avers, however, that she did not authorize her attorneys to enter into the said stipulations, and did not know of their existence, or of the existence of the judgments and decrees thereon, until within a period of six months prior to the beginning of this suit. She alleges that she signed a power of attorney, which she said was to her attorney, Judge Kash, and not to the respondent, for the purpose of clearing up titles to real estate theretofore sold by respondent, and that in consideration thereof she received the sum of $3,000, but that she at no time recognized the validity of the Klickitat county divorce decree, an I at no time consented to release the community estate for the payment of said $3,000; that she left Spokane believing that she and respondent were still husband and wife; that he promised to maintain her, and she believed he would ultimately come to her and live with her as her husband. The respondent answered, pleading the aforesaid circumstances, and also the said written contract, stipulations, judgments, and decrees. The answer also pleads the statute of limitations, and that appellant is estopped by her conduct to assert that she is still the wife of respondent, or that she has any interest in any property now held by him. A trial was had before the court without a jury, and the court found the facts substantially as they have been heretofore stated, including the existence of the written contract which was destroyed as aforesaid, and that appellant had authorized all steps and proceedings heretofore outlined. The court entered the following conclusions of law:

“1. The adjudication by the district court of the Fourth Judicial District of Washington Territory, upon the petition of the plaintiff to vacate the decree of divorce, entered in Klickitat county case was a final and binding adjudication against the plaintiff upon all the matters and things alleged by her in this case touching the validity of that decree of divorce.

“2. The adjudication by the court upon stipulation in the cause brought-by the plaintiff against the defendant on the 13th day of December, 1886, together with the agreement hereinbefore referred to, with the payment of the $3,000 thereunder, was a final and binding adjudication in favor of the plaintiff and upon all matters and things alleged in the complaint touching the property rights of the defendant and herself.

“3. Plaintiff, by her failure to pursue her petition to vacate the divorce decree, abandoned the same.

“4. Plaintiff by all the matters and things done, agreed to and consented to by her receiving the money received by her, and by the reliance placed upon that settlement on the part of defendant and his present wife, and all the other facts and circumstances of the case, is now estopped to dispute either the validity of the Klickitat county divorce decree or the validity of the judgment upon her petition in that case, or the validity of the judgment in the suit of December 13, 1886.

“5. Plaintiff by her delay and a.11 the facts, conditions and circumstances in the case, is barred of any relief herein upon the ground of laches.

“6. The cause of action of plaintiff as stated in the complaint, and each and every part thereof is barred by the statute of limitations of the territory and state of Washington.

“7. Plaintiff is not entitled to maintain this suit in equity, because she has shown no reason for not pursuing the remedy given her by statute.

“8. Defendant is entitled to a final decree as prayed for in his answer.”

Upon the foregoing the court entered judgment dismissing the action, and that respondent recover his costs. Prom said judgment this appeal is prosecuted. The record in the case is necessarily very extensive, and the briefs of counsel are very long. There are more than eight hundred pages of printed matter in the briefs submitted by counsel in the case. Appellant’s counsel separately assign one hundred and forty-six errors in their opening brief. It is manifestly impracticable to undertake to discuss them all, and we do not think it necessary so to do. We will, therefore, proceed generally to discuss questions which involves errors complained of, and which we deem material.

Much space is devoted to the discussion of alleged errors based upon the court’s refusal to hear evidence bearing upon the question of respondent’s actual domicile at the time of the Klickitat county divorce proceedings, and upon alleged fraud in the procurement of the divorce. It is urged that the court, had no jurisdiction, and that the decree was void. The decree stands upon the record, however, as one valid upon its face. The court that entered the decree was one of general jurisdiction, having authority to determine cases of the class of that in which tire decree was entered. The subject-matter of the action was within the court’s jurisdiction, and it had the power to enter the kind of decree that was entered in an action of that nature, provided it also had jurisdiction of the persons. The evidence shows that the files of the original ease were transferred from Klickitat county to Spokane county on change of venue as aforesaid, at the time the petition to vacate the decree was filed, but the clerk of the court, as custodian of the records, is unable to find them. It seems probable from the evidence that they were taken from the clerk’s office by some one of the several counsel who- were, in behalf of their clients, interested in the litigation of 1886, and that they have been unintentionally misplaced and lost. The order of default recites, however, that the defendant in the case (appellant here) had been served with summons by publication, and the decree recites that the evidence was sufficient. At the trial of this cause a certified copy of a record was introduced in evidence, showing certain entries in what was called the “fee book,” — a book kept by the clerk of Klickitat county in 1885, corresponding in some of its features to the appearance docket kept by clerks of the superior courts at the present time. That record shows that a summons issued in the case and was returned; that after-wards an affidavit for publication of summons was filed and summons issued the same day the affidavit was filed. There is also> an entry of the return of the summons fifty; two days later. It is held by some courts that the mere recital in a judgment or decree that there was service of a given kind is sufficient evidence of service^ as against a collateral attack upon the judgment, when there is nothing in the record negativing the recital. Others hold that the record, aside from such recital, must disclose the evidence of the service. Under either view of the law, we think the above record evidence, when taken in connection with the recitals in the order of default and in the decree, must be held to show, as against a collateral attack, that there was service by publication. There may have been facts existing which would have made the decree a voidable one under appeal, writ of error, or other appropriate direct proceeding instituted for the express purpose! of avoiding it. But we think the record is sufficient to sustain the decree until it is so expressly and directly attacked.

“But the word ‘void’ can with no propriety be applied to a thing which appears to be sound, and which, while in existence, can command and enforce respect, and whose infirmity cannot be made manifest. If a judgment rendered, without in fact bringing the defendants into court, cannot be attacked collaterally on this ground, unless the want of authority over them appears in the record, it is no moro void than if it were founded upon a mere misconception of some matter of law or of fact occurring in the exercise of an unquestionable jurisdiction. In either case, the judgment can be avoided and made functus officio by some appropriate proceeding instituted for that purpose; but if not so avoided, must be respected and enforced.” 1 Freeman, Judgments (4-th ed.), §13 6.

“On ihe other hand, a voidable judgment is one which, though not a mere nullity, is liable to be made void when a person who has a right to proceed in the matter takes the proper steps to have its invalidity declared. It always contains some defect which may become fatal. It carries within it the' means of its own overthrow. But unless aud until it isydulv annulled, it is attended with all the ordinary consequences of a legal judgment. The party against whom it is given may escape its effect as a bar or an obligation, but only by a proper application to have it vacated or reversed. Until that is done, it will be efficacious as a claim, an estoppel, or a source of title. If no proceedings are ever taken against it, it will continue throughout- its life to all intents a valid sentence. If emanating from a court of general jurisdiction, it will be sustained by the ordinary presumptions of regularity, and it is not open to impeachment in any collateral action.” 1 Black, Judgments, § 170.

“Jurisdiction over the subject-matter is the right of the court to exercise judicial power over that class of eases; not the particular case before it, but rather the abstract power to try a case of the kind or character of the one pending; and not whether the particular case is one that presents a cause of action, or under the particular facts is triable before the court in which it is pending, because of some inherent facts which exist and may be developed during the trial.” Brown, Jurisdiction, .§ la.

See, also, 1 Black, Judgments, § 240; 1 Freeman, Judgments (4th ed.), § 120.

It has already been held in this state that where the court rendering a judgment has jurisdiction of the subject-matter, and adjudges that jurisdiction has been properly acquired over the person of the defendant, where there is nothing in the record to contradict it, such adjudication is as conclusive as that upon any other question in the case, when collaterally attacked. Rogers v. Miller, 13 Wash. 82 (42 Pac. 525, 52 Am. St. Rep. 20) ; Kizer v. Caufield, 17 Wash. 417 (49 Pac. 1064); Munch v. McLaren, 9 Wash. 676 (38 Pac. 205).

To the same effect are the following: Bonsall v. Isett, 14 Iowa, 309; Ballinger v. Tarbell, 16 Iowa, 491 (85 Am. Dec. 527); Callen v. Ellison, 13 Ohio St. 446 (82 Am. Dec. 448); Hendrick v. Whittemore, 105 Mass. 23; Jackson v. State, 104 Ind. 516 (3 N. E. 863); Delaney v. Gault, 30 Pa. St. 63.

Appellant seeks to have the decree of divorce declared void as having been obtained by fraud on the part of respondent.

“Fraud in procuring a judgment; cannot be shown by the parties to such judgment, in any collateral proceeding.” 1 Freeman, Judgments (4th ed.), § 132.

The author cites the following cases, all of which sustain the above proposition, viz: Carpentier v. Oakland, 30 Cal. 439; Smith v. Smith, 22 Iowa, 516; People v. Downing, 4 Sandf. (N. Y.) 189; Blanchard v. Webster, 62 N. H. 467.

A distinction seems to be observed between parties to an action in which a judgment has been obtained by fraud and strangers to the record who may be affected thereby. Thus the same author, at §336, observes as follows:

“Whenever a judgment or decree is procured through the fraud of either of the parties, or by the collusion of both, for the purpose of defrauding some third person, lie may escape from the injury thus attempted by showing, even in a collateral proceeding, the fraud or collusion by which the judgment or decree was obtained.”

Again, in § 334, the same author further observes:

“The parties to an action cannot impeach or set at naught the judgment in any collateral proceeding on the ground that it was obtained through fraud or collusion. It is their business to see that it is not so obtained. If, without any fault or neglect of one party, his adversary succeeds, by fraud, in obtaining an inequitable and unauthorized judgment, he must fake some proceeding prescribed by law'' to annul the judgment, and cannot, in the absence of such annulment, treat it as invalid. It is only third persons who have the right to collaterally impeach judgments. They are accorded this right because, not being parties to the action, nothing determined by it is, as to them, res judicata."

See, also, Boston, etc., R. R. Corp., v. Sparhawk, 1 Allen, 448 (79 Am. Dec. 750.); Meekley's Appeal, 102 Pa., St. 536; Clark v. Douglass, 62 Pa. St. 408; Christmas v. Russell, 5 Wall. 290.

The same principle is discussed, and many authorities cited, in Knapp v. Thomas, 39 Ohio St. 377, 387 (48 Am. Rep. 462).

This action is a collateral attack upon the divorce decree by the defendant in that action. The purpose of this' action is not simply to annul the divorce decree, but its primary object is an entirely separate and independent matter, viz., to secure separate maintenance or an interest in respondent’s property, and as a mere incident thereto, based upon necessity before recovery can be had, it is sought to have the original judgment declared of no effect. A “collateral attack” is defined as follows:

“But if the action or proceeding has an independent purpose and contemplates some other relief or result, although the overturning, of the judgment may be important or even necessary to its success, then the attack upon the judgment is collateral and falls within the rule.” 1 Black, Judgments, § 252.

Again, in 12 Am. & Eng. Enc. Law, p. 147j, a collateral proceeding is defined as being, “any proceeding which is not instituted for the express purpose of annulling, correcting or modifying the judgment or enjoining its execution.” The above rule was approved and adopted in Morrill v. Morrill, 20 Ore. 96 (25 Pac. 362, 11 L. R. A. 155, 23 Am. St. Rep. 95). To the same effect is Kalb v. German Savings & Loan Society, 25 Wash. 349 (65 Pac. 559). It is true that in the two last cited cases the judgments objected to were not mentioned in the complaint, but by reply and in the introduction of evidence it was sought to avoid them. However, the principle involved is the same as here. They sought specific relief as to property rights, and, in order to obtain that relief, it became necessary to' attack the judgments. In each instance the attack was held to be collateral.

If, however, this action should be treated as a direct attack upon the judgment, the defenses of the statute of limitations, laches, estoppel, and former adjudication are all pleaded to the complaint. Referring to the statute of limitations in this state, this court said in Citizens National Bank v. Lucas, 26 Wash. 417 (67 Pac. 252):

“It seems to us that the legislature in the passage of this act attempted to provide a limitation for every kind of action that could be brought in the courts.”

The attack upon this judgment is based upon allegations of fraud practiced by the prevailing party. The court has power to vacate a judgment for fraud practiced by the successful party in obtaining the judgment. Bal. Code, § 5153. The petition for this purpose must be brought within one year. §5156 of same volume. Where a fraud has been concealed, or is not known to the moving party in time to take advantage of the statutory remedy, resort can be had to a suit in equity to annul the judgment; but otherwise the statutory remedy is exclusive, and must be pursued within the time fixed by statute. Chezum v. Claypool, 22 Wash. 498 (61 Pac. 157, 79 Am. St. Rep. 955). The appellant knew of the rendition of this decree, as we have already seen, in the spring of 1886, after its rendition in October, 1885. She filed a petition to vacate it, and alleged substantially the same grounds now urged. That petition was abandoned. She now says she did not so understand it or so intend, but the finding of the court is otherwise, and, we think, is sustained by the testimony. The character of Judge Kinnaird, her counsel who- signed the stipulation upon which the judgment dismissing that petition was entered, is shown to have been of such high standing, .personally and professionally, that it seems incredible, when all the evidence -is considered, that the dismissal should have been made without appellant’s authority. Moreover, the complaint in the case heretofore mentioned as having been brought for the purpose of adjusting property rights in 1886, avers that appellant “remained the wife of defendant [respondent] from the time of their said marriage till about the llt-h day of October, 1885, when they were divorced in this judicial district without any settlement of property rights, and without any division of the community property.” The prayer of the complaint, after asking for a gross sum to be fixed as her interest in the community property, then concludes: “and that when- so paid said sum be in lieu of and in full satisfaction of all of plaintiff’s rights and interests in the community property of plaintiff and defendant.” That complaint was sworn to by appelant herself, and she swore that she knew the contents thereof, and believed them to be true. The above fact, taken in connection with all the other evidence, and the record made on the stipulation of her counsel to dismiss the petition to vacate, we think, must be taken as conclusive against her upon that question. An order dismissing a petition to vacate a judgment is final and appealable, and is therefore res judicata of the matters set up in the petition. Kuhn v. Mason, 24 Wash. 94 (64 Pac. 182).

If, however, it were true that there- were reasons why she could not pursue her statutory remedy within the time, the general statute, of limitations must apply here also-. Section 4800, Bal. Code, provides that an action for relief upon the ground of fraud must be brought within three years, but the cause of action shall not be deemed to "have accrued until the discovery by the aggrieved party •of the facts constituting a fraud. Under the evidence in this case, appellant clearly knew of the facts now charged .as fraud as long ago as 1886. She alleges that she was fraudulently misled as to her rights in the settlanent heretofore outlined, and did not know thereof until within six months prior to the beginning of this suit. But we think .the evidence does not sustain the allegation, and the trial court so found. This court, in Stearns v. Hochbrunn, 24 Wash. 206 (64 Pac. 165), held that it is sufficient, as a rule of pleading, under the statute, to allege that the fraud was not discovered until a given time, without alleging the facts showing diligence in the effort to discover it, and intimated that it is rather a rule of evidence, than a rule of pleading, that means of discovery is equivalent to actual discovery. We are satisfied with that statement of the rule. 4 It in no way contravenes the well-known rule that means of discovery may be treated as actual discovery when it appears from the evidence that the party aggrieved might, with reasonable diligence, have sooner discovered the fraud. This rule applies to appellant here. Por thirteen years she remained silent, knowing that respondent was living with another as his wife, that children were being born, and that all the sacred relations of the family arose therefrom, knowing that the rights of innocent children were being involved, and that respondent and their mother were continually recognized as husband and wife, still she did not move. While the history leading up to this case may appear as if culled from story or fiction, and while that history may appeal to sympathy in behalf of appellant, yet, for reasons heretofore assigned, it must be held that she cannot maintain this action. We think the court- committed no material errors, and the judgment is affirmed.

Reavis, C. J., and Pullerton, Anders and Dunbar, JI., concur.

Mount, J., not sitting.