Knight v. Harrison

Bronson, J. This is an action for partition wherein it is sought to vacate in part a final decree of distribution entered in the county court of Cass county. The defendant Louise G. Knight has appealed from a judgment rendered in favor of the plaintiff .and the remaining defendants, awarding partition and setting aside, in part, such final decree, and from the order of the trial court denying a new trial, with leave to file an amended answer. There is little dispute upon the facts. This appeal involves, practically, questions of law alone. In substance, the facts are as follows: The appellant was married to one Bonfoey, in Michigan in 1883. In August, 1903, the husband, Bonfoey, instituted an action for divorce upon the ground of desertion in the superior court of Los Angeles county, California. The appellant admitted service and made no answer or appearance in such action. On September 25, 1903, the divorce action came up before, and was submitted for decision to, the court in California. On September 30, 1904, the judge of the California court made and signed an interlocutory decree, which provided that, upon the expiration of one year from and after the entry of such interlocutory decree, a final decree should be made dissolving the bonds of matrimony. On October 9, 1905, the appellant, age stated thirty-nine years, was married to one Elmer Gordon, age stated forty-four years, by the judge of the superior court of San Diego county, in the city of San Diego, who certified that he believed the facts stated in the marriage license to-be true, and that there appeared no legal impediment to the marriage. On November 30, 1909, said Elmer Gordon died in San Bernardino county, California, from accidental causes. On January 19, 1910, the appellant pursuant to a marriage license issued in Orange county, California, was married to the deceased, Suel II. Knight, age stated seven — 83 — ty-five years, residence Cass county, North Dakota, by a justice of the peace of such county, at Santa Ana, who certified that he believed the facts stated in the license to be true, and upon inquiry that there appeared to be no legal impediment to the marriage. On January 26, 1914, said Enight died intestate in Los Angeles county, California, and at the time was living there with the appellant. He left surviving him seven children, all of age excepting one girl, who appears in this action by her guardian. Such children are his only heirs at law if the appellant is not entitled to her statutory share in his estate. Thereafter proceedings for the administration of the estate of the deceased . were instituted in the court of Cass county, this state, and pursuant to proceedings had in such county court, a final decree of distribution was rendered and entered by the court on December 30, 1915. Such decree of distribution awarded one third of the real and personal property to the appellant and the remaining two thirds to the respondents. The estate consists of farm lands, city buildings and lots and personal property, aggregating an appraised valuation of over $150,000. An agreement in writing was made between the appellant and the respondents that, after the date of the decree of distribution, and up to and including December 31, 1916, one Washburn, who was the administrator, should rent, manage, and control the property of the estate and attempt to dispose of the same for a fee of 5 per cent and a commission of 5 per cent, in case of an agreed sale of any of such property. On March 27, 1917, a complaint was filed by the plaintiff herein in the district court of Cass county, alleging ownership of the parties herein in the property of the deceased, pursuant to the final decree rendered, including the one-t-hird interest of the appellant therein, and praying for a statutory partition of the real property in severalty. On October, 1917, the appellant herein requested leave of the court to file her answer and, upon leave being granted, her answer was filed praying for a partition in accordance with the demand of the plaintiff’s complaint. In August, 1917, a written contract was made between the parties hereto, wherein the plaintiff agreed to sell to the appellant and to the remaining children all of his right and interest in the real and personal property of the estate for the sum of $33,000, $10,000 to be paid on September 1, 1917, and the balance on or before ten years thereafter. Upon this agreement the plaintiff brought an action for specific perform — 84 — anee and filed a lis pendens, but, after the commencement of this action of partition, the same was abandoned and dismissed. On April 18, 1918, pursuant to an application made, the trial court permitted the plaintiff to file an amended and supplemental complaint. In this supplemental complaint many of the facts hereinbefore stated are alleged, and it is further alleged that the appellant was never the wife of said deceased, but that she was and for many years had been the lawful wife of said Bonfoey; that the plaintiff and the other children of the said deceased did not ascertain such fact until within six weeks prior to the filing of such supplemental complaint; that the proceedings had in the county court and with relation.to such estate were so had upon the belief of the parties interested that said appellant was in fact the wife of said deceased. Such complaint therefore prayed that the final decree of the county court be set aside to the extent that it awarded to said appellant such interest as the widow of the deceased, and that it be decreed that the children of said deceased be the only heirs and the ones entitled to the entire estate; that, further, such children be determined to he the owners in fee as cotenants of the real and personal property of the estate; that furthermore such children recover judgment against the appellant for the moneys paid to her, some $9,902, out of such estate, and that partition of the real and personal property be had as provided by law. To this supplemental complaint the defendants, other than the appellant, interposed an answer admitting all the allegations thereof and asking for judgment as demanded therein. To such supplemental complaint the appellant interposed a second separate answer denying specifically the allegations therein contained concerning her status as the widow of the deceased. In such answer the appellant specifically alleges that she procured an absolute divorce from said Bonfoey, in the superior court of Los Angeles county, California, which ripened into a final decree and judgment of divorce, and that such judgment is now in full force and effect. That furthermore the county court of Cass county had full jurisdiction and entered a final decree of distribution in the estate of the deceased pursuant to which the appellant became entitled to the distributive share therein mentioned. The action herein, upon these issues, came up for trial in the district court in October, 1918. Upon the trial it was shown that an interlocutory decree hereinbefore mentioned in the di — 85 — vorce case of Bonfoey v. Bonfoey was duly made and filed in the California court, but that the final decree of divorce was never, in fact, entered. There was introduced, however, a nunc fro iunc final decree of divorce, made by the successor of the judge who heard the divorce case and entered by the court on August 31, 1918, which awarded an absolute decree of divorce and ordered that such decree be entered as of the date, October 4, 1905. This nunc fro iunc divorce decree was secured upon a showing made to the California court by said Bonfoey tb the effect that his attorney inadvertently failed and neglected to cause to be entered the final decree of divorce at the expiration of one year from the entry of the in-, terlocutory decree. On November 20, 1918, the trial court in this action made findings through which judgment was ordered, setting aside the final decree of the county court so far as it awarded the distributive share of the estate to the appellant, granting to the children of the deceased the right to recover from her some $8,215 received by her from the estate, and ordering a partition of the property. Pursuant thereto judgment was entered on November 26, 1918. Thereafter in January, 1919, the ap-, pellant made a motion for a new trial, among other things, upon grounds of newly discovered evidence and for leave to file an amended answer. IJpon such motion there was presented to the trial court a new, amended final decree of the California court, dated December 11, 1918, which directed the entry of a final decree of divorce nunc fro tunc as of the date of October 4, 1905, and recites therein that such court did after the expiration of one year from the entry of such interlocutory decree, to wit, on or about the 4th day of October, 1905, sign a final order and decree in and conformative to such interlocutory decree, but that the same was through inadvertence not presented to the clerk, and not entered by the clerk of the court, and has become lost. This amended decree was secured upon a showing made through the affidavit of Lizzie Parmer, the sister of the appellant; that such sister called upon the judge of the California court, who heard the divorce action and who advised her that he had signed the final decree and that everything requisite in the matter had been done. Also the affidavit of said Bonfoey, to the effect that he asked his attorney in such divorce action if the final decree had been procured, and that he was advised that the final decree — 86 — had been prepared and had been signed by the judge, and that he would cause it to be filed, and also the affidavit of Beulah Bynerson, the daughter of the appellant and said Bonfoey, to the effect that in a letter which said attorney for Bonfoey wrote to the appellant that the final decree had been granted, had .been signed by the judge, and that everything had been done that was required by law to be done in such matter to make said decree final. There was also presented to the court an affidavit of the appellant to the effect that she received such letter from said attorney, and that she wrote to her sister, and that she received a letter from her sister to the effect that said judge had advised of his signing such final decree. There are also affidavits of diligence used to ascertain the facts. On March 4, 1919, the trial court denied the motion of the appellant. This appeal is before this court upon such record. The action was tried to the court apparently as an equity action. All the evidence offered was received. The appellant demands a trial de novo and specifies some twelve alleged errors. It is the contention of the appellant that, upon the showing made before the trial court for a new trial, the amended judgment of divorce is a valid judgment; that it .could be validly entered nunc pro tunc; that there is a sufficient showing of a final decree of divorce in fact, having been pronounced valid as a judgment even though not entered and filed by the clerk of the California court; that the respondents in this action are seeking to collaterally attack a judgment of the county court of this state duly entered. The respondents contend that the record upon which the judgment herein was secured affirmatively shows no valid judgment of divorce granted to the appellant; that likewise upon the showing made by the appellant for a new trial the amended judgment of divorce then presented shows no valid judgment of divorce existing at the time the final decree of distribution was made or prior thereto. That furthermore, under the decisions and the law of California, no valid judgment could be rendered in a divorce action until it had been, in fact, filed and entered; that the amended judgment of divorce could not operate retroactively to destroy or affect the rights of the respondents herein; that the judgment of divorce, as. amended or otherwise in the California courts, was subject to collateral attack, being void on its face, at least so far as the rights of the respondents herein are concerned, and that — 87 — the respondents are directly attacking such final decree of distribution manifestly made through mistake. The main arguments of the parties relate to the construction to be placed upon the law and the decisions of the state of California concerning the pronouncing and rendition of a final judgment. In our opinion it is wholly unnecessary to pass upon or determine the construction to be given, or the interpretation that should be placed upon the law or the decisions of California. The respondents seek by a partition proceeding to have awarded to them the estate due them pursuant to a final decree of distribution made in a court of record in this state, in the manner in which they desire it to be revised. It is conceded by the respondents that, in rendering that final decree of distribution, the county court had jurisdiction of the parties and jurisdiction over the subject-matter. There is no contention made in that regard. In this partition action they are seeking a statutory partition as provided in this state to have awarded in severalty the property of the state after such final decree was rendered and by reason of such final decree having been rendered. It is clear that prior to the entry of such final decree of distribution the action of partition could not be maintained. Honsinger v. Stewart, 34 N. D. 513, 159 N. W. 12. It is also clear that the final decree of distribution constituted a valid final judgment; that this decree could not be made by any other court or in any other proceeding. Comp. Laws 1913, §§ 8531 — 8533; Sjoli v. Hogenson, 19 N. D. 82, 122 N. W. 1008; Joy v. Elton, 9 N. D. 438, 83 N. W. 875. It stands of equal rank with any judgment entered by any court in this state. Fischer v. Dolwig, 29 N. D. 561, 151 N. W. 431. In Sjoli v. Hogenson, 19 N. D. 92, 122 N. W. 1008, court stated: “The decree of distribution is an instrument by virtue of which heirs receive the property of the deceased. It is the final determination of the rights of the parties to a proceeding, and, upon its entry, their rights are thereafter to be exercised by the terms of the decree. There is another reason why the final decree of distribution in the estates of deceased persons must be held conclusive. Under our probate system, all deraignment of title to the property of deceased persons is through the decree of distribution, entered as a final act in the administration of an estate, whether testate or intestate. No one will contend that this decree can be made by any other court, or in any other proceeding. It — 88 — constitutes not only the law of the personalty, but also of the real estate. Toland v. Earl, 129 Cal. 148, 79 Am. St. Rep. 100, 61 Pac. 914. A decree of distribution has, in most respects, all the efficacy of a judgment at law or decree in equity. An action may be maintained upon it for noneompliance with its requirements, and there is no greater necessity for a demand before bringing action than exists in case of suit upon an ordinary judgment at law, or before issuing an execution upon a judgment. Melone v. Davis, 67 Cal. 279, 7 Pac. 703. When a decree of distribution has been made the probate court has no longer jurisdiction of the property distributed, and the -distributee thenceforth has an action to recover his estate, or, in proper cases, its value.” The action of partition is in the nature of a chancery action, cognizable under equity powers. 20 Cyc. 170; McArthur v. Clark, 86 Minn. 165, 91 Am. St. Rep. 333, 90 N. W. 369. It is true that the plaintiff, upon his supplemental complaint, seeks to avoid this final decree of distribution by the exercise of the equity jurisdiction of this court to vacate the same upon grounds of mistake, but nevertheless the main purpose of the action is for partition pursuant to a final decree of distribution which respondents seek to revise, and which they claim the right to revise in determining the title of the parties in such proceeding. The respondents, by this action of partition, invoke a form of action and a proceeding which cannot precede, but must follow and be pursuant to, the final decree, for the evident reason that the deraignment of title to the property of the deceased must be through the decree of distribution. It is apparent from this entire record that if any legal wrong or mistake has been accomplished with reference to the divorce proceedings in California, it has occurred by no acts or mistakes of the parties themselves, but by the acts of the court or of its officers, including the attorneys who are officers of the court. It is further clear that all of the parties to this proceeding, including the deceased, the father of the respondents, have always acted -upon the assumption and belief that the appellant was in fact the wife of the deceased, and not living in adulterous relations with him. It is also clear that in California, at various times, legal action has been taken upon the theory that the appellant and said Bonfoey were in fact divorced. The California court so recognized when it certified and permitted the appellant to marry one Gordon. It likewise so certified when it permitted the appellant to marry the dc89 ceased in California, and there to reside with him until he died. In equity the respondents come before this court with a claim unconscionable in its nature, which seeks to secure for themselves the distributive share of the appellant by reason of a legal technicality and a legal nicety. In effect, they are seeking in equity for the application of the maxim that “equity follows the law.” It so happens in this case that justice may be done between the parties by equity following the law. The attempt of the respondents herein to attack the validity of the final decree of distribution in this action is a collateral attack upon a valid judgment of a court of record in this state. Shane v. Peoples, 25 N. D. 188, 141 N. W. 737; Bradley v. Drone, 187 Ill. 175, 79 Am. St. Rep. 214, 58 N. E. 304; Kavanagh v. Hamilton, 53 Colo. 157, 125 Pac. 512, Ann. Cas. 1914B, 76. See note in Ann. Cas. 1912A, 983; 23 Cyc. 1062; Safe Deposit & T. Co. v. Wright, 44 C. O. A. 421, 105 Fed. 155; Van Fleet, Collateral Attack, ¶ 3. It is well settled that a final judgment is not subject to collateral attack except upon jurisdictional grounds or grounds of collusion or fraud. Joy v. Elton, 9 N. D. 428, 438, 83 N. W. 875; Sjoli v. Hogenson, 19 N. D. 82, 93, 122 N. W. 1008; 23 Cyc. 1323. To set aside such judgment, upon equitable grounds, it is necessary to bring a direct proceeding for that specific purpose. 23 Cyc. 1033, 1323. There is no intimation in. this record of lack of jurisdiction of the county court or of any grounds whatsoever of collusion or fraud. The respondents assert that the judgment of the California court, being void on its face, is subject to collateral attack. Though such contention be recognized, nevertheless, this does not mean that they can or are able to collaterally attack the final decree rendered in this state. In the same action the respondents cannot both seek a decree based upon a final judgment of this state and at the same time seek to vacate and set the same aside. Furthermore, in this collateral attack made in this partition proceeding, the final decree of distribution is res judicata, between the parties. It involved the question of the right of succession which necessarily was passed upon as a prime requisite in the determination made in the final decree of the county court. Hpon plain principles of res judicata, therefore, the respondents in this proceeding, who were parties to the probate proceeding resulting in the final decree' of distribution, are bound thereby. 23 Cyc. 1106, 1114, 1215; Sjoli v. Hogenson, 19 N. D. 82, 93, 122 N. W. — 90 — 1008; Caujolle v. Ferrié (Caujolle v. Curtiss) 13 Wall. 465, 20 L. ed. 507. It therefore follows that the trial court wholly erred in setting aside or vacating the final decree of the county court in this proceeding, and the judgment rendered is erroneous in that regard. It is therefore ordered that the judgment of the District Court be reversed, with directions to enter judgment of partition in accordance with the final decree of distribution as rendered. The appellant will recover costs.