Stierlen v. Stierlen
Before: Kerrigan
Synopsis
Divorce in Another State — Vacating Decree for Fraud — Jurisdiction not Limited to Code Provision for Other Relief—Motion Within Reasonable Time.—Where a divorce between a husband and wife was obtained in another state, an order obtained by the wife, upon notice to the husband, vacating the decree on the ground of fraud practiced both upon the court and upon the wife by the husband in its procurement, is not governed by a code provision of such state limiting the time for relief from a judgment for mistake, inadvertence, surprise or excusable neglect, but is governed by what the court may deem a reasonable time for relief on the ground of fraud.
Id.—Rule in This State as to Void Judgment.—In this state a void judgment is not governed by section 473 of the Code of Civil Procedure.
Id.—Comment by Supreme Court.—The supreme court in denying a rehearing expresses its opinion that the foregoing statement is not necessary to the decision, and that in so far as it may be construed as applying to any judgment not void on its face, viz., on an inspection of the judgment-roll, its correctness is doubted, and approval is withheld therefrom.
Id.—Inherent Power of Courts of General Jurisdiction to Relieve from Judgments for Fraud—Question of Reasonable Time—Discretion.-—The power to vacate upon motion a judgment obtained by fraud is inherent in courts of general jurisdiction, and the same may be exercised after the lapse of the statutory time for relief on other grounds, provided such motion is made within a reasonable time. What is a reasonable time for such relief on the ground of fraud is a matter of sound legal discretion in the court in which the motion is made.
Id.—Determination Against Laches of Wife in Moving to Set Aside Decree—Conclusiveness in This State—Second Marriage of Husband.—Where the court of the state in which the decree of divorce was rendered, in setting aside the decree, held that the wife was not guilty of laches in making- her application to set aside the decree on the ground of fraud of the husband in procuring the decree, that interpretation of the law of that state is conclusive upon the courts of this state, in which the validity of a second marriage by the husband is involved.
Id.—Action by Former Wife to Annul Second Marriage of Husband —Absence of Limitation During Joint Lives.—Where the husband, after obtaining the fraudulent decree of divorce against his former wife, remarried in this state, after the annulment of such fraudulent decree such remarriage may be annulled at the suit of the former wife, without any other limitation than that, under section 53 of the Civil Code, such suit may be brought at any time during their joint lives; and the fact that it was not begun until nearly seven years after the entry of the decree of divorce is not imputable as laches.
Opinion
This is an appeal by plaintiff from a judgment in favor of defendants, and from an order refusing a new trial, in an action to annul the marriage of the defendants.
In February, 1886, the plaintiff and the defendant George Stierlen were married in San Francisco. There they continuously resided from that time until the month of March, 1896, when George Stierlen left plaintiff, and after visiting several places, arrived in the state of North Dakota in the following month, where he remained until the following November, when he returned to California and permanently resumed his residence here — having been absent from the state for not more than seven months. While in North Dakota, and in the month of July, he filed in that state a complaint in divorce against the plaintiff herein. Within the time allowed by law she filed an answer, which she subsequently withdrew; and the court, after hearing the evidence introduced on behalf of George Stierlen, on the seventeenth day of November, 1896, dissolved the marriage. Upon the entry of the decree George Stierlen left the state of North Dakota and returned to California, as above mentioned, where on the twenty-seventh day of November, a few days after his arrival here, he married the defendant Rosa Scott. Shortly thereafter he again visited North Dakota, remaining there about six weeks. *Page 611
On the twenty-fifth day of September, 1897, Emma Stierlen filed in the North Dakota court a petition to set aside said decree of divorce, whereupon an order to show cause was issued, directing George Stierlen to show cause on October 23, 1897, why the decree of divorce should not be vacated and set aside. The hearing of this motion was continued by consent from time to time until March 14, 1898, when evidence was introduced in support of the motion, which tended to show that George Stierlen was not a bona fide resident of North Dakota, that the decree was obtained on perjured testimony, that Emma Stierlen had a good defense to the action — although her attorney (who was in the employ of her husband) advised her otherwise; that an agreement entered into between herself and her husband settling their property rights — by the terms of which she agreed not to resist the proceeding for a divorce — was the result of false representations as to the merits of her defense and as to her rights, made to her by her attorney and other agents of her husband. Said petition, which was verified, embraced many additional averments of deceit, concealment and fraud.
It may also be mentioned here that at this hearing the court's attention was for the first time called to the fact that George Stierlen in his complaint alleged that he had theretofore, with intent to give his wife a ground for divorce, committed an act of adultery.
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