Baugh ex rel. McGuire v. Baugh

Campbell, J. A bill was filed by four infants of tender-years by a next friend, to vacate a divorce granted to their mother, Margaret Baugh, against their father, John B. Baugh, and bringing in as co-defendants their father and mother and their father’s second wife. The ground of interference is alleged collusion between their father and mother. The bill is not sworn to. A demurrer was put-in by the defendants John and Addie Baugh and the bill was dismissed. An appeal is brought to this court. The jurisdiction over divorce is purely statutory, and the legislative authority has not seen fit to allow any but the-parties to intervene in such suits. The husband and wife are the only persons recognized as parties. It is true that the interests of children are in some important respects more nearly affected by such proceedings than by those which merely concern rights of property. So-far as maintenance is concerned it is certainly never permissible for children, whether infants or adults, to interfere with their parents in the use or disposal of their property; [62] and considerations of that sort do not add any force to the other allegations. Their personal custody has been made dependent on the will of their parents subject to some oversight by the courts upon proper occasion. But no court in this country has any power to compel discordant husbands and wives to live together, and we do not perceive that any legal rights of these infants have been invaded, however much they may have been affected otherwise. It is for the Legislature to determine to what extent public policy requires the power of intervention to be vested in any but the parties to divorce suits. There are certainly some reasons why it might be wise to have children represented, but whether their ultimate prosperity would be furthered by permitting strangers to intervene in their behalf between parents, is a question which would probably be considered very carefully before any action is taken to permit it. In the mean time the courts have no right to sanction any such intervention. It is expected of all divorce courts that they will be vigilant in examining the circumstances of all cases before them, and not allow any decree without a full scrutiny. The means furnished for this purpose are adequate for most cases. In the best circumstances justice will sometimes miscarry, but this is not peculiar to divorce cases, and it will not do to resort to unauthorized measures to redress legal misfortunes or wrongs. It would not be desirable, in order to get rid of some unjust judgments, to destroy the force of judgments generally, and allow them to be attacked by third parties where the legal rules which have been established to determine their effect have not permitted it. Where the judgment is only voidable and not void, it cannot be attacked by strangers to the record. And where it is absolutely void it needs no proceedings to set it aside. In either case such a bill is inadmissible. We are constrained to say further that the bill before us, which is filed on behalf of very young infants by a person who seems to be a mere volunteer and does not make oath even on information and belief to the facts, and which upon the most vital facts of fraud is not put in issuable shape, and suppresses the names of the actors, is not such [63] a pleading as is usually required where an attempt is made to disturb'a judgment. It is not at all likely that any action which may be had in the direction of haying infants represented will allow any one who chooses to assume to manage their interests. The decree must be affirmed, with costs. The other Justices concurred.