JANE A. EDSON vs. WILLIAM D. EDSON.

PETITION, filed in Suffolk on December 4, 1866, by Jane A. Edson, describing herself as of the city and state of New York, and verified by her oath, alleging that at the November term 1866 of this court, held at New Bedford, within and for the county of Bristol, upon the libel of William D. Edson, her husband,

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a divorce for the cause of adultery was decreed to him from the bond of matrimony therefore existing between him and herself, and the custody of her three minor children was granted to him; that in his said libel he alleged that his residence was at Mansfield in said county, and that her residence was to him unknown; that upon the filing of the libel, on September 1, 1866, notice was ordered to her by publication in a certain newspaper published at Taunton in said county, and that no other notice was given to her, and no appearance was made by her, all which more fully appears by the records of the court; that the allegations of adultery in the libel, against her, are false, and were and are known so to be to her said husband; that he did not, at the time of filing the libel, or ever at any time, live at Mansfield or elsewhere in said county, and at the time of filing the libel he well knew her residence in the city of New York, and the house in which she resided; that he was married to her at Philadelphia on May 14, 1856, and they removed to Brookline in the county of Norfolk, in this Commonwealth, about October 1, 1865, and there lived together as husband and wife until February 4, 1866, when for good and lawful cause she left him, and has ever since lived in the family of her sister in New York; that at sundry times, while they were so living at Brookline, he committed adultery with divers lewd women, and especially with Susan P. McComb; that ever since June 1866, and up to the time of the granting of said decree, he lived in open adultery with said McComb, at Brookline, in the house where the petitioner last resided with him; that he and McComb were so living as part of the family of Hiram E. Barstow and Louisa A. Barstow, wife of said Hiram; that McComb was there known and called as "Mrs. Edson," and as the reputed wife of her said paramour; and that they two and said Barstows continued so to reside at Brookline until about November 17, 1866, when they all absconded from the Commonwealth for parts unknown; that said decree was granted solely on the testimony of the Barstows, to the effect that the petitioner had admitted to them that she was guilty of adultery as alleged in the libel; that this testimony was false, and all the facts above alleged were well known to the Barstows; that the petitioner's

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said husband, before filing his libel, well knew that she was about to file a libel of divorce against him, to be made returnable at the term of this court next to be held in Norfolk, in which county alone jurisdiction thereof could be had, that she had retained counsel therefor, that he could obtain no divorce from her if she should appear and oppose any application made by him for a divorce, and that she would appear and oppose any such application of which she should have notice; that she believes that he filed his libel in Bristol, and falsely alleged his residence to be in that county and that her residence was to him unknown, and procured the order of notice by publication, solely with the design of preventing her appearance to oppose the libel, and of procuring the decree without notice to her; and that she had in fact no notice or suspicion of the pendency of the libel, or of any of his said proceedings therein, until November 25, 1866, when she learned casually, by a newspaper published in Boston, that the decree had been made several days before; wherefore the petitioner alleged "that said order of notice from this court, and the hearing upon said libel, and the said decree thereon, were obtained by a fraud practised upon this petitioner and upon this court, and without knowledge of the petitioner, and against right," and prayed "that said decree may be reopened, vacated and declared to be null and void, and for such other and further relief as justice may require." A copy of the record of the decree of divorce was annexed.

An order of notice to William D. Edson was issued upon this petition, returnable in Suffolk in January 1867, at which time he appeared and moved to dismiss the petition for the reason "that the proceedings referred to therein, and the record thereof, are in every respect regular, and it is not competent for this court to open and declare null and void the decree therein referred to for the reasons therein set forth." The question "whether the court, upon proof of the facts alleged in the petition, can grant to the petitioner any, and if so, what relief, either sitting in this county, or upon a new order of notice returnable, or a new petition filed in any other county," was reserved by Gray J., for the determination of the full court, upon the petition, the motion to dismiss and the record of the divorce, and was argued in March 1867.

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W. G. Russell, for the petitioner. 1. The American courts are governed by the same principles as to opening and reversing decrees of divorce as in other causes. Bishop on Mar. & Div. (4th ed.) § 751, and cases cited. A court of chancery will on motion vacate an enrolled decree, where the defendant has been deprived of his defence by surprise, mistake, accident, or the neglect of his solicitor. Thompson v. Goulding, 5 Allen 81, 82. Parker v. Dee, 3 Swanst. 529. Robson v. Cranwell, 1 Dickens, 61. Kemp v. Squire, 1 Ves. Sen. 205. Stevens v. Guppy, Turn. & Russ. 178. Millspaugh v. McBride, 7 Paige 509. Beekman v. Peck, 3 Johns. Ch. 415. Erwin v. Vint, 6 Munf. 267. At common law also, a judgment of a former term may be vacated on motion. Stickney v. Davis, 17 Pick. 169. It is obvious that a fraud which prevents a defendant from making his defence is a stronger ground for setting aside a decree than mere surprise or mistake. Loyd v. Mansell, 2 P. W. 73. Richmond v. Tayleur, 1 P. W. 734, 736.

2. It has often been held, both in England and here, that fraud practised in procuring a decree of divorce will avoid it. Shelford on Mar. & Div. 475. Prudham v. Phillips, Ambl. 763; S. C. 20 Howell State Trials, 479 note. Roach v. Garvan, 1 Ves. Sen. 157. Conway v. Beazley, 3 Hagg. Eccl. 639, 643. Allen v. Maclellan, 12 Penn. State, 328. Dunn v. Dunn, 4 Paige 425. Singer v. Singer, 41 Barb. 139. Jeans v. Jeans, 3 Harrington, 136. Johnson v. Johnson, Walker Ch. 309. Mansfield v. Mansfield, 26 Missouri, 163. Smith v. Smith, 20 Missouri, 166. Wren v. Moss, 2 Gilman, 72. Carley v. Carley, 7 Gray 545. Such decisions are confirmed by numerous authorities establishing the invalidity of divorces obtained in another state in fraud of the law of domicil, or by imposition on the court. 2 Kent Com. (11th ed.) 109. Hanover v. Turner, 14 Mass. 227. Lyon v. Lyon, 2 Gray 367. Harding v. Alden, 9 Greenl. 140, 151. Jackson v. Jackson, 1 Johns. 424. Burden v. Fitch, 15 Johns. 121, 145. Vischer v. Vischer, 12 Barb. 640. These cases establish that this decree of divorce would have no validity in any other state; and it is not possible that the tribunal on which the fraud was practised is the only one which is bound by it.

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3. The decree, being null by reason of the fraud on the petitioner and the court, should be so pronounced, upon the facts appearing to the court on motion or petition. Bishop on Mar. & Div. (4th ed.) § 753, and cases cited. Allen v. Maclellan, 12 Penn. State, 328. 4 Am. Law Reg. 1, 48 note. Carley v. Carley, 7 Gray 545.

The decisions in Greene v. Greene, 2 Gray 361, and Lucas v. Lucas, 3 Gray 136, do not preclude this remedy; but, fairly considered, rather favor it. The attempt in Greene v. Greene was to set aside, by another libel for divorce, a decree rendered in a case fully heard after notice and upon defence made. It was not a case of fraudulent judgment, but only of an allegation that false testimony had been offered to the court, the question of the truth or falsity of which was res adjudicate. Applying to the general statement contained in the last part of the opinion the qualifications stated in the earlier part of it, the case is by no means decisive of the present. But if that general statement is to be taken without qualification, it is submitted that the grounds of the decision are a fit subject for reconsideration. In considering the consequences of allowing the reversal of the decree of divorce, due weight was hardly allowed to the consequences of an absolute rule refusing such a reversal. The possible invalidating of a subsequent marriage, contracted on the faith of the judgment, may be no worse than the certain condemnation of an innocent wife to the disgrace of an irreversible decree of guilt, and to the loss of her children; and if no possible fraud is to be allowed to vitiate a decree, it may even occur that by a fictitious suit parties may find themselves upon the record divorced without the knowledge or consent of either. It may well be questioned also, whether any consequences to individuals can be so great an evil as that the highest judicial tribunal should be obliged to confess itself helpless in the hands of skillful fraud. It is also submitted that there was a misapprehension of the authorities cited in the opinion. That the force of the decision in Allen v. Maclellan, 12 Penn. State, 328, was misapprehended, see 4 Am. Law Reg. 48 note. The citation made from Willes, C. J., in the leading case of Prudham v. Phillips, is incomplete in a vital point, and the case,

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as reported in Ambl. 763, and Howell State Trials, 479 note, distinctly intimates that a defendant who cannot "plead that a judgment against him was fraudulent" may nevertheless apply to the court which rendered it, to vacate it on the ground of fraud. The case is simply authority for the proposition that a decree unreversed cannot be collaterally impeached by one of the parties to it; the decision in Greene v. Greene is to the same effect; and to that extent its doctrine is not to be questioned. But neither case should be considered authority for the broad doctrine that a decree obtained by fraud of one party cannot be directly impeached by the other. Lucas v. Lucas merely decides that, under the limited terms of our statute, review does not lie to vacate a decree of divorce.

For such a wrong as has been done to this petitioner, without fault or neglect on her part, under the form of judicial process, and for such a fraud upon this tribunal, it may well be assumed that some remedy exists. And if the court has determined that such a judgment cannot be impeached in an original bill or by review, it does not necessarily follow that the party is to suffer hopelessly, or the court is to submit to be made the instrument of fraud. The statute confers ample powers on the court in all cases where the course of procedure is not specially prescribed; Gen. Sts. c. 107, § 53; and even in the absence of statutory provision, it has been held that like power would exist. Le Barron v. Le Barron, 35 Verm. 365.

B. W. Harris & P. E. Tucker, for the respondent. An original proceeding cannot be maintained to set aside a decree of divorce from the bond of matrimony, on the ground that it was fraudulently obtained upon false evidence; Greene v. Greene, 2 Gray 361; unless at the same term; Carley v. Carley, 7 Gray 545. Nor can a writ of review; Lucas v. Lucas, 3 Gray 136; Sheafe v. Sheafe, 9 Foster, 269; Bascom v. Bascom, 7 Ohio, 465; Olin v. Hungerford, 10 Ohio, 268; nor a writ of error, for facts contradicting the record and showing want of jurisdiction; Riley v. Waugh, 8 Cush. 220. If the court will admit evidence outside of the record to show want of jurisdiction, when the record itself shows jurisdiction, no judgment or decree can be final.

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BIGELOW, C.J. To a correct understanding of the points involved in the present case, it is to be borne in mind that the proceeding now before us is a petition by a party to a case, against whom a judgment has been rendered at a former term of this court in another county, asking that said judgment may be set aside and annulled on the ground that it was obtained by fraud. It is, in other words, an application to the court by one party in a suit, against the other party to the same suit, to vacate a judgment rendered therein, and not an attempt to avoid the effect of a judgment in a proceeding purely collateral. It is also to be observed, in considering the application, as it is now brought before us, that all the facts stated in the petition are to be taken as true, and that all the facts stated in the petition are to be taken as true, and that it is to be assumed that they can be fully maintained by proof, if the petitioner is allowed to adduce evidence in support of the allegations. These set forth a case in which it is clear that a party has procured a judgment of this court in his favor by the perpetration of a gross fraud, by means of which he induced this court to take cognizance of a case at a term of the court in a county in which it could not legally exercise jurisdiction over the parties, and to hear and determine it without giving to the adverse party any due or legal notice of the proceedings, or any opportunity to appear and be heard in the suit. The question to be determined is, whether a judgment so obtained can be reexamined and set aside by the party aggrieved by the fraud, or whether it is to be taken as forever binding and conclusive on the rights and obligations of the parties.

The statement of the question is of itself sufficient to make it apparent that, if there is no remedy by which judgments so procured to be rendered can be impeached and annulled, courts of justice may be made instruments by which the grossest frauds may be successfully accomplished, to the great wrong and injury of innocent persons. Such a conclusion cannot be supported, unless it is founded on adjudicated cases which this court is bound to regard as obligatory declarations of the law, or upon reasons of the most decisive and satisfactory nature.

Upon careful examination of the authorities, we are entirely satisfied that they do not sustain the doctrine, that courts have no

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power to grant relief to parties to a suit, against whom a judgment has been obtained by fraud. It is no doubt true, that a decree or judgment which stands unreversed and in force cannot be called in question or impeached in collateral proceedings, by one of the parties to the original suit; it is a very different proposition to maintain that an innocent party cannot invoke the power of the court by which the original judgment or decree was rendered, to vacate and annul it on the ground that it was procured by a fraud practised on the court to his gross injury. We believe it to be an established principle of jurisprudence, that courts of justice have power, on due proceedings had, to set aside or vacate their judgments and decrees, whenever it appears that an innocent party without notice has been aggrieved by a judgment or decree obtained against him without his knowledge, by the fraud of the other party. Nor is this principle limited in its operation to courts which proceed according to the course of the common law. It is equally applicable to courts exercising jurisdiction in equity, and to tribunals having cognizance of cases which are usually heard and determined in the ecclesiastical courts. In tribunals of the last named description, whose decrees cannot be revised by writ of error or review, the proper form of proceeding is by petition to vacate the former decree as having been obtained by fraud upon the party and imposition upon the court. Parker v. Dee, 3 Swanst. 529. Kemp v. Squire, 1 Ves. Sen. 205. Roach v. Garvan, Ib. 157. Stevens v. Guppy, Turn. & Russ. 178. Richmond v. Tayleur, 1 Pen. Wms. 734, 736. Loyd v. Mansell, 2 P. W. 73. Shelford on Mar. & Div. 475. Conway v. Beazley, 3 Hagg. Eccl. 639, 642. Prudham v. Phillips, Ambl. 763; S. C. 20 Howell State Trials 479 note. Jackson v. Jackson, 1 Johns. 424. Dunn v. Dunn, 4 Paigec 425. Story Confl. Laws, § 547. 2 Kent Com. (11th ed.) 109.

The case of Greene v. Greene, 2 Gray 361, which is cited and relied upon by the respondent, is not in conflict with the general current of authorities. Some of the general expressions used by the court, when disconnected from the facts of the case then in adjudication, have been thought to give sanction to the doctrine that a decree of divorce, when once obtained, could not be impeached

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in any form or mode of proceeding, or set aside by one of the parties to the original suit, however fraudulent and collusive may have been the conduct of the other party in its procurement. But such a conclusion is not a fair and legitimate result of the language and reasoning of the court, when considered, as it ought to be, solely with reference to the actual case before the court for adjudication. The attempt there was, upon a new libel for divorce, to try over again a case which had before been adjudicated between the same parties after due notice and opportunity for a full hearing on the merits. Strictly speaking, the decision is an authority only for the proposition that a decree of divorce cannot be called in question or invalidated, on the ground of fraud in its procurement, in a separate and independent libel, subsequently brought between the same parties, when it appears that the first decree was entered after due notice to the adverse party, followed by an adjudication upon evidence offered in support of the allegations in the libel. To this extent, there can be no doubt that the decision is in harmony with sound principle and with adjudicated, the authority of the case cannot be properly extended.

It certainly is clearly distinguishable from the case now before us. This is not a new suit in the nature of an original proceeding to obtain a decree of divorce, in the course of which it is attempted to treat a former decree as null and void. But it is a petition, addressed to the sound judicial discretion of the court, asking that a decree rendered at a former term may be reopened and vacated on the ground that it was fraudulently obtained. It is in the nature of an application to correct the record and prevent wrong and injustice from the effect of the judgment as it now stands. In this respect, it only invokes the exercise of a power of the court, for which there are precedents in analogous cases. Stickney v. Davis, 17 Pick. 169. Capen v. Stoughton, 16 Gray 364. Nor does the petitioner seek to set aside a decree rendered against her in a suit of which the court had full jurisdiction, of the pendency of which she had due notice, and in which an opportunity to be heard was afforded her; but she asks only that she may not be deprived of her rights by a judgment

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rendered against her in a proceeding of which she not only had no notice, but of which all knowledge was fraudulently kept from her, and of which the court had no actual jurisdiction, but only an apparent jurisdiction, founded on a false allegation of domicil.

It is hardly necessary to add, that reasons of public policy, or a regard to the consequences which might ensue to innocent parties from the exercise of a power to invalidate a decree of divorce after it had become res adjudicata, do not constitute sufficient reasons for a denial of the existence of the power. Considerations of such a nature may well induce courts of justice to exercise the power with great caution, and only where the rights of parties are clear and there has been no neglect or failure to insist upon them in due season. Further than this, they can have no weight.

Motion to dismiss overruled; petitioner to enter the case in the county of Bristol.

The case was accordingly entered in Bristol, and came on for hearing at April term 1869, when the respondent did not further appear, and was defaulted; and upon a full hearing, the material facts alleged in the petition being proved, it was ordered, adjudged and decreed "that the decree heretofore made upon the libel of said William D. Edson, by this court held at New Bedford within and for the county of Bristol on the second Tuesday of November 1866, whereby the bond of matrimony between said William D. and said Jane A. Edson was dissolved, and the custody of the minor children of said William D. and Jane A. Edson was given to said William D., be and the same is hereby vacated and annulled, in accordance with the prayer of said petition."