Holmes v. Holmes

Stevens, J. I. It appears from the allegations of plaintiff’s petition that he is and has been, at all of the times referred to in this action, a resident of Woodbury County, Iowa; that, on October 5, 1916, he and defendant were married, and lived together until December 1, 1916, and that, on December 25, 1916, she commenced an action against plaintiff in Fayette County for a divorce, upon the ground of cruel and inhuman treatment, such as to endanger her life, based upon the communication to her by plaintiff herein of a venereal disease, from which she became sick and suffered great physical and mental pain and anguish; that, on May 31,1917, a decree granting the prayer of her petition was entered, which, on the 18th day. of February, 1919, was affirmed by this court. As ground for setting aside said decree and for a new trial, plaintiff herein alleged in his petition that the same was obtained by fraud and perjury. It is first alleged that defendant, plaintiff in the divorce — 258 — action, Avas not, at the time of commencing same, a bonafide resident of Fayette County, but that she Avas, in truth and in fact, a resident of Minneapolis, Minnesota, to which place she returned, shortly after the trial, and Avhere she has continued to reside; -that she went to Fayette County only for the purpose of obtaining a divorce; that she Avas, prior to her marriage, and has been, since her return to Minneapolis, engaged in teaching music; that defendant appeared in the divorce action, and.filed an application for a change of venue to Woodbury County, AAdiere he resided, which Avas overruled; that, he specifically denied in his ansAver that the plaintiff therein Avas a resident of Fayette County. . , ; It is further alleged that defendant herein testified, upon the 'trial of said cause, that Drs. Emmons and Pattison made a physical examination, and informed her that, she Avas afflicted with a venereal disease; that, since the trial of said cause, plaintiff has learned, that said testimony Avas AAdiolly false, and that both of said physicians advised her ’to the contrary. The petition further charges that defendant herein employed E. H. Farin in .the capacity of a detective and agent, Avho, in turn, employed one O. W. Davis to assist him, to procure testimony on her behalf in the diA’orce action; that the said Farin and Davis procured one George M. Hecklin as a Avitness, who testified that he had seen plaintiff herein. at a, roadhouse near Sio.ux City, in company Avith women of questionable character ; that Davis asked him for a prescription for the cure ,of a venereal, disease, stating that he wanted it for a, friend, meaning the petitioner, Avho later asked him for a copy, of the same prescription, saying that, he had lost the first one; that the said Hecklin further testified that he saw a Mrs. Davis going to the room of petitioner in a hotel in Sioux City; and that the said Hecklin and Dayis procured -one Edith Ludvickson, a /woman of bad character, to falsely testify that, Avhile AAmrking as a chambermaid in said hotel, she saAV stains upon the bed .linen used by plaintiff, indicating the presence of a filthy disease; that, since the decision — 259 — of this court was filed iu the divorce action, plaintiff has learned the matters above ■ stated; that Hecldin has admitted that the matters testified to by him were wholly false and untrue; that said admission has been made orally, and in writing under oath, which plaintiff has in his possession; and that the said Hecklin is ready and willing,, in case a new trial is. granted, to testify that he committed perjury upon the former trial. To this petition, the defendant interposed what amounts to an equitable demurrer. 1' SsM?bee:: creedor ae” fraud. As already indicated, the jurisdictional question was made an issue in the trial of the divorce action, and the court specifically found that plaintiff was. a bona-fide resident of Fayette County, .and entitled to maintain ;her action there. The adjudication in that action .is conclusive, except upon the ground of fraud. Williamson v. Williamson, 179 Iowa 489; Bingman v. Clark, 178 Iowa 1129; Scott v. Scott, 174 Iowa 740. The only matters pleaded in plaintiff’s petition tending to impeach .defendant’s claim that she was a resident of Fayette County in. good faith is that she left there, shortly after the trial, and resumed her former occupation in Minneapolis, where she has continued to reside. A finding by the court, upon a trial of the issues tendered herein, of the above facts, would not justify the setting aside of the decree and the granting of a new trial. Residence is largely a matter of intention. The statute does not require that the plaintiff in a divorce action reside in this state for any specified length of time, if the defendant is a resident thereof. She need only be, a resident of the county in which the action is brought. The defendant had a legal right,, in good faith, to change her place of residence, and the mere showing that she returned-to Minneapolis,. instead of going to some other city, is, in view of her former residence .there, material, only as tending to throw light upon her intentions at the time she claimed to have become a resident of Fayette County. The court passed upon the question of the gopd faith of her intentions in the- divorce suit, and held that — 260 — she was a bona-fide resident thereof. 1 That she returned to Minneapolis and resinned her former position, shortly after the decree was entered, may tend, to some extent, to indicate that the purpose of her coming to Iowa was to obtain a divorce, but is wholly insufficient alone to justify the court in setting aside the judgment for want of jurisdiction to enter same, or upon the ground of fraud. 2' appiiSSn sufficiency^6: II. False swearing or perjury upon the original case is not such fraud as will alone justify the vacation of a judgment and the granting of a new trial upon a petition in equity, filed after the term at which' judgment was entered. Graves v. Graves, 132 Iowa 199; Croghan v. Umplebaugh, 179 Iowa 1187; Sudbury v. Sudbury, 179 Iowa 1039; Kelly v. Cummens, 143 Iowa 148; Guth v. Bell, 153 Iowa 511; Mengel v. Mengel, 145 Iowa 737. 3. Judgment : application to set aside: sufficiency. Nor will a court of equity interfere to set aside a judgment upon the application of a party thereto, until it is made reasonably to’ appear that the judgment is unconscionable, unjust, or inequitable, and that the result would be other or different than that already reached if a new trial were granted. Bingham v. Clark, supra. The testimony given upon the former trial, which it is alleged was false and corruptly procured, is that of the plaintiff in said suit, Hecldin, Davis, and Edith Ludvickson. It is alleged that defendant committed perjury when she testified that Drs. Emmons and Pattison, after a physical examination, advised her that she was afflicted with a venereal disease. So far as disclosed, neither of said physicians was a witness upon the trial, nor is reference made in the petition to the source of petitioner’s information that they did not tell plaintiff in said cause what she testified they did, or the character of the evidence relied upon to establish the falsity of her testimony. The mere allegation that, since the trial, petitioner has been informed by some person not mentioned, or learned in some way not stated, that the plaintiff in’ the divorce action committed — 261 — perjury, is not enough. We must presume that evidence was offered upon the trial, tending to corroborate her claim that she was afflicted with a venereal disease, and we cannot presume what other evidence, in addition to her own and that of the witnesses named, was introduced. Tf Ave look only to the petition filed herein, Ave find nothing to indicate AArhether medical testimony Avas offered upon this point or not; but, if Ave refer to the opinion of this court cited therein, we find that Drs. Ida McKean 'and Alford both testified that, upon a thorough examination of her, they found plaintiff in the divorce action suffering from the disease claimed. It is not alleged that either Dr. Emmons or Dr. Pattison is Avilling to testify that plaintiff Avas free from disease, and, so far as disclosed, testimony, if offered, upon this point would serve only to contradict the testimony of plaintiff, and to some extent Aveaken the probative value of the testimony of Drs. McKean and Alford. In other Avords, it Avould not necessarily establish either that plaintiff committed perjury or that Drs. McKean and Alford are untruthful or mistaken, but only to extend the conflict in the evidence. It is further alleged that the Avitness Hecklin testified upon the former trial at the instigation and solicitation of Farin and Davis, and, so far as shoAvn, his testimony Avould be contradicted by both Farin and Davis, and that Davis would not recede from his former testimony. If, however, we again turn from the petition to our former decision, we find that the court apparently gave little weight to the testimony of Hecklin and Davis. While the testimony thereof is referred to at some length, the court characterizes it as unsatisfactory, and recapitulates the credible testimony upon Avhich the affirmance is largely based. The only person named in the petition by Avhom petitioner expects to prove that perjury Avas committed upon the trial is Hecklin, avIio, it is alleged, has confessed in Avriting that he did commit perjury. Just Avhat has worked the regeneration of this witness does not appear; but it is a long-distance chance that his purpose is sincere, or intended to right a Avrong imposed upon the — 262 — parties, and the court in the. trial of the divorce case. By this we do not mean to question that the affidavit signed by him and prepared by his attorney was not fairly obtained, as alleged; but neither his written confession nor his testimony, if offered upon a retrial of the divorce action, would probably be given very great weight. We do not agree with the contention of counsel that the written confession of this Aidtn ess would constitute a high degree of proof. ■ While it is charged in the petition that the testimony of Edith Ludvickson Avas corruptly procured by DaA'is and Farin, the allegations' do not disclose that petitioner Avill be able, upon a retrial, to sustain the same by proof, unless by the testimony of Hecklin. It is not charged that the alleged bad character of the Avitness was unknoAvn to petitioner at the time of the trial, or that he did not have opportunity of showing same. Her testimony could not have been very persuasive upon the former trial. It may be assumed that same was contradicted by petitioner and that the material circumstances referred to in the petition affording a further contradiction thereof were brought to the attention of the court upon the trial. But it is insisted' by counsel for petitioner that the demurrer, for the purpose of passing upon the sufficiency of the allegations of the petition, admits the truth thereof. But such facts are admitted only as are issuable, relevant, material, and well pleaded. The admission does not extend to the conclusions of the pleader or any matter inhering in the judgment. Sudbury v. Sudbury, supra. A petition in equity for the vacation of a judgment, and for a new trial, is rather in the nature of a showing of merits than the statement of a cause of action, as that term is ordinarily applied. Its purpose is to bring to the attention of the court such facts as, if admitted by a demurrer, Avould sIioav that the judgment complained of is unconscionable; unjust, or inequitable, and that it is reasonably probable that a retrial of the issues would result differently. The matters relied upon should be charged with sufficient fullness and explicitness to enable the court, in passing — 263 — upon a demurrer in conformity with the rule stated,"to determine whether the facts admitted thereby call for the intervention of a court of conscience. As stated by counsel for appellant in argument,: it is apparent that petitioner relies primarily upon the written confession of Hecklin and the showing made thereby. If it were conceded that all of the testimony of this witness, together with that of Davis, Farin, and Ludvickson, was wholly false and untrue, the effect of such admission would go no further, upon a trial of the merits, than to remove the same from consideration, unless satisfactory proof was offered that the plaintiff in that case knew of the perjury, or had reasonable grounds to believe the testimony untrue. The elimination of this evidence would not tend to overcome her own or other testimony offered upon the trial as to plaintiff’s condition, in the absence of knowledge upon her part that the witnesses testified falsely. Aside from the mere allegation that defendant' herein knew that Hecklin, Davis, and Ludvickson were corruptly induced to testify falsely upon the trial, there is nothing to indicate upon what petitioner relies to make proof thereof. Unless plaintiff knew, or at least had reason to believe, that the testimony of these witnesses was false, when offered, the elimination' thereof would in no wise weaken the testimony of herself or physicians that she was afflicted with the disease mentioned. As already stated, a mere showing that perjury was committed upon the trial does not entitle the petitioner to a new trial. The court, in Graves v. Graves, supra, quoting from Pico v. Cohn, 91 Cal. 129 (25 Pac. 970, 27 Pac. 537), said: “That a former judgment or decree may be set aside and annulled for some frauds, there can he no question; brit it must be a fraud extrinsic or collateral to the questions examined and determined in the action. * '* * What, then, is an extrinsic or collateral fraud, within the meaning of this rule? Among the instances given in books are such as these: Keeping the unsuccessful party away from the court by a false promise of' a compromise, or purposely — 264 — keeping liim in ignorance of the suit; or Avhere an attorney fraudulently pretends to represent a party, and connives at his defeat, or, being regularly employed, corruptly sells out his client’s interest. United States v. Throckmorton, 98 U. S. 65, 66, and authorities cited. In all such instances, the unsuccessful party is really prevented, by the fraudulent contrivance of his adversary, from having a trial; but, when he has a trial, he must be prepared to meet and expose perjury then and there.” 4. Judgment : sotting aside: extrinsic perjury. The petition does not allege such facts shoAving extrinsic or collateral fraud in the procurement of the judgment assailed as to entitle petitioner to the relief demanded; and, Avhile the record upon the former appeal presented a most unusual, extraordinary, and unfortunate state of facts and circumstances, the issues Avere tried, and submitted to a court of large experience, and the record was again carefully examined and scrutinized upon appeal. We are con-A'inced that the facts alleged and admitted by the demurrer do not make a prima-facie showing of fraud in the procurement of the decree, entitling petitioner to the relief demanded, and the demurrer Avas rightly sustained. The order appealed from is — Affirmed. Weaver, C. J., Ladd and Gaynor, JJ., concur.