Kingman v. Kingman

Mr. Justice Wall delivebed the opihioh oe the Coubt. This is a writ of error to reverse a decree dismissing-a bill in chancery. The scope of the bill was to impeach a decree of divorce because it was obtained upon false testimony. The complainant was duly served as a defendant in the divorce case, but did not appear. A default was entered, evidence was heard, and a decree passed according to the prayer of the bill. The allegation now made, that the testimony offered and upon which that decree was entered was false, is not sufficient to support the bill. The fraud for which a former decree may be impeached must be in respect to the jurisdiction of the court over the person of defendant and the like, but there would be no end of litigation if a party were permitted to ignore a summons to appear as a defendant, suffer a default, and afterward file an original bill to impeach the decree on the ground that it was based upon false testimony. It was Ms duty to appear and make Ms defense. According to Ms own showing the decree would not have been rendered if he had used proper diligence and care to defend. Burton v. Perry, 146 Ill. 102; Greene v. Greene, 2 Gray 361. The bill is not a bill for review. Such a bill must proceed upon, first, error of law apparent on the face of the decree, or, second, newly discovered evidence. In the latter case leave must be obtained to file the bill and the party asking it must pay the costs of the first case and perform the decree unless to do so would extinguish some right. Griggs v. Gear, 3 Gilm. 2. Here it is not averred that there was error of law, or that there was newly discovered evidence. A motion was made to dismiss the bill—upon the view, probably, that it was a bill of review—because it was filed without leave and did not show payment of costs, etc. It appears that the court heard arguments as to the sufficiency of the bill, treating the motion as a demurrer, and, upon consideration, held the bill bad and dismissed it. It is now urged that this practice was irregular and is ground for reversal. As is to be inferred from the record, the course so adopted informally was not objected to, and was, no doubt, by'consent, for the sake of time and convenience. The bill "was clearly bad and the decree dismissing it ought not to be reversed because of this mere informality.