author: HURIN, J.

text:
    DIVORCE AND ALIMONY — ERROR.
    [Mercer (3d) Circuit Court,
    1909.]
    Norris, Hurin and Donnelly, JJ.
    Mulligan v. Mulligan.
    1. Setting Aside Rules Observed for Many Years that Impede Justice.
    Courts inherently have the right to protect themselves and the publie from fraud and perjury; hence, neither question of public policy nor rule, of court which protects and encourages perjury and fraud can be permitted' perpetually to impede justice, notwithstanding such rule has been observed for more than a half century and that courts reluctantly upset well-established rules.
    2. Divorce Decree Set Aside after Term for Fraud and Perjury.
    A decree of divorce obtained by fraud and perjury, on the facts being shown, may be set aside after the term at which the divorce was granted, and notwithstanding remarriage of the guilty party.
    [Syllabus approved by the court.]
    Error to Mercer common pleas court.
   HURIN, J.

On March 5, 1907, Maggie Mulligan filed her petition in this action seeking to have set aside a decree of divorce obtained against her by her husband, the defendant, at a former term of the court of common pleas.'

In her amended petition, subsequently filed, she alleges,that that decree was obtained by fraud and perjury, in this, that her husband was not, at the time of filing his petition for divorce, a tona fide resident of Mercer county, and had not been a resident of the state for, one year prior to the filing of his petition; that she had no actual notice of such action in time to malte her defense, that no other service was sought to be had upon her than by publication in a newspaper. She alleges that she did not discover said facts during the term or terms in which said action was pending, nor until the twentieth of November in the following year, and that she could not, with reasonable dili-" genee, have discovered such facts. She alleges that Frank Mulligan at all times knew the address and place of residence of this petitioner and that the allegation of his affidavit for service by publication that “the residence of the defendant, Maggie Mulligan, is unknown and can-, not with reasonable diligence be, ascertained, ’ ’ was false.

She alleges that said Frank Mulligan practiced fraud and suborned., witnesses in obtaining his decree of divorce; that the allegations of his petition as grounds for his divorce are false; she admits that she has. !>een separated from him by reason of his aggression; that she is the mother of his two living children and of one. who has- died, and she files .a-full answer-‘setting up her defense to. his action ¿or divorce and asks that the decree of divorce be vacated and set aside and that she may be allowed to defend.

A demurrer ' to this amended petition was sustained and the amended petition dismissed, and plaintiff, not desiring to plead further, prosecutes error to this court.

The original petition for divorce was filed April 12, 1905. It appears from one of the pleadings that the entry decreeing the divorce was probably dated June 17, 1905.

Plaintiff says in her petition that she did not learn of that decree until November 20, 1906. Her petition to set aside the decree was filed March 5, 1907, more than one year and eight months after the granting of the decree. It is not properly before us by any allegation ©f pleadings but it is said by counsel in argument as one reason for not granting the prayer of the petition, that the original plaintiff has married again and hence that the rights of his present supposed wife ought not to be interfered with.

Section 5354 Rev. Stat. provides that “the common pleas court, or the circuit court, may vacate or modify its own judgment or order, after the time at Which the same was made:

“1. By granting a new trial for the cause within the time and in the manner provided in section 5309 (and that section limits such action to one year after the final judgment was rendered and not more than two terms after the discovery, — evidently not applicable to this ease at bar).

“2. By a new trial granted in proceedings against defendants constructively summoned, as provided in section 5048 which provides for the service by publication.

“3. For fraud practiced by the successful party in obtaining judgment or order.”

Both of the two subdivisions last cited are apparently applicable to this case, as is also Sec. 5355 Rev. Stat. which provides:

“A party against whom a judgment or order has been rendered without other service than by publication in a newspaper, may, at any time within five years after the date of the judgment or order, have the same opened, and be let in to defend; but before the judgment or order can be opened, the applicant shall give notice to the adverse party of his intention to make the application, and shall file a full answer to the petition, pay all costs, if the court require them to be paid, and make it' appear, to the satisfaction of the court, that during the pendency of the action he had no actual notice thereof in time to appear in court and make, his defense; and each; party-may present 'affidavits, ”. .

It is under this section apparently that the action has been brought and its provisions' have been fully complied with by the present petitioner.

In its terms this section is clear and explicit and apparently applicable to all cases of every kind where no other service has been obtained than by publication. But for some reason, wise or otherwise, the legislature and the courts of this state have, for a long time, treated divorce suits as if governed, by a separate rule and reason from all'other suits.

The allegations of the petition in .a -divorce proceeding are not required to be verified. Distinct rules as to costs distinguish such suits generally from other suits; and it has been held that this statute, clear and explicit and of universal application as it appears to be,.must not be held to apply to divorce suits.

The reason on which ail of these judicial decisions are based is that public policy requires that a “decree which affects directly the status of married persons, by sundering the matrimonial tie, and thereby enabling them to contract new matrimonial relations with other and innocent persons, should never be reopened.” See Parish v. Parish, 9 Ohio St. 534, 537 [75 Am. Dec. 482].

This principle was first applied to divorce cases in this state in the opinion of Judge Lane in the case of Bascom v. Bascom, 7 Ohio (pt. 2) 125. He supports his conclusion by reasoning regarding the different forms of testimony in chancery cases and divorce cases,— reasoning which would have but little weight under our present practice, — but the only reason relied on apparently is that of public policy, which, without discussion, he assumes to be against the granting of any relief to the injured party in divorce cases. That ease was followed in the case of Laughery v. Laughery, 15 Ohio 404, but without discussion and merely as decisive of the question as to the appealability of a divorce case, — a question now settled by statute.

Both the cases of Bascom v. Bascom and Laughery v. Laughery, supra, were cited and relied upon in the case of Tappan v. Tappan, 6 Ohio St. 64, — not to determine the question here at issue, — as to the right of a court which has granted a divorce to reopen the case on notice of fraud and perjury in obtaining the decree, — but to support the holding that there, can be no review in Ohio by a higher, court of a decision of a lower court granting a divorce, — a proposition not now before us.

Judge Scott, however, in an obiter dictum in Tappan v. Tappan, supra, states on page 67; that “these cases may be .regarded as'settling the question that, as the law then stood in Ohio, the decision of the court on the hearing of a petition for divorce was final, and beyond the reach of judicial revision. ’ ’ Even this statement of the law, though going beyond the question before the court at that time, and therefore not to be. regarded as conclusive, would not necessarily be applicable to the law. as it has since been amended; and,, in his subsequent discussion in that ease, Judge Scott proceeds to point out defects in the then existing law in certain respects and his views have since been embodied by the legislature in .the law as it stands today.

But in the case of Parish v. Parish, supra, the question now before us was squarely met by the Supreme Court, and the ease was decided upon that issue alone, the facts of that case being practically identical with those in the ease at bar.

In that ease, after a careful review of the authorities Judge Peck concludes as follows:

“We therefore feel compelled, though reluctantly, to hold that sound public policy in this class of cases, forbids us from .setting aside a decree of divorce a vinculo, though obtained by fraud and false testimony, on an original bill filed at a subsequent term. ” .

It is evident from this quotation that the Supreme Court realized the extreme hardship which its decision would entail on innocent wives and children deserted by unscrupulous men who, without their'knowledge, had procured the protection of judicial decrees annulling their former marriages. It is perhaps significant that at the very time this decision was rendered the legislature had already modified- the statute relied upon by that court as showing that, at the time the divorce in that case was obtained, it was final. From page 537 of that opinion I quote: -

“The statute of March 14, 1843, conferring jurisdiction in-divorce eases upon the courts of common pleas, which was in force when these proceedings were had, provides that ‘no appeal shall be obtained from the decree, but the same shall be final and conclusive.’ 2 Curwen 991.”

It is significant, I say, that the last clause quoted, viz., “but the same shall be final and conclusive” had already been expunged from the statute (see 51 O. L. 377; S. & C. 514) and has never since been incorporated in the statutes of Ohio.

But, to continue the quotation, the court, referring to the statute as it had formerly stood, proceeds,

“This statutory provision is nothing more than a legislative recognition of the principle of public policy, which had been repeatedly affirmed by the courts, that a judgment or decree which affects directly the status of married persons by sundering the matrimonial tie, and thereby enabling them to contract new matrimonial relations with other and innocent persons, should never be reopened. Such a course would •endanger the peace and good order of society, and the happiness and well-being of those who, innocently relying upon the stability of a •decree of a court of competent jurisdiction, have formed a connection with the person who wrongfully, perhaps, procured its promulgation.”

This presents to us in carefully chosen language the grave reasons which influenced that court in holding that a decree of divorce, obtained at a former term of the court which was asked to set it aside, could not be set aside or annulled.

We cannot fail to recognize the gravity of the question. Yet there is another side which we must also consider. In cases such as Parish v. Parish, supra, and the ease at bar, there are other innocent persons involved, — the innocent wife and children of the perjured husband. Shall it be said that public policy demands that the wife, who for ten •or perhaps twenty years has lived with her husband and borne children to him, has no rights which he may not avoid by quietly slipping off to another county and there swearing that he does not know her address ? Has an affinity greater rights than a wife? Are the interests of a man’s •children less sacred than those of his paramour?

Suppose a case! A man has lived with his wife many years, — in the city of Cincinnati, sáy. When she has lost some of her youthful •charm, he tires of her and finds a younger and fairer charmer. He explains to his wife that he is interested in oil leases in Wood county, say, which will for a few weeks require his attention. He bids her an affectionate good bye and betakes himself to Wood county where he actually engages in the oil business. He writes to his wife constantly and affectionately and occasionally runs home and spends a day with her. But in Wood county he lets it be known that he is located there permanently and his occasional absences are not noticed. In a few weeks he files his petition for divorce, swearing that he does not know his wife’s residence or address. He obtains service by publication, but the papers of that county do not circulate in Cincinnati and his wife never hears of the suit. On the last day of the term his case is tried, a divorce is granted on perjured testimony and the court adjourns. His wife has heard nothing of these proceedings and still Supposes that she is his wife. Six months or a year later she is confronted by her successor — who has been conniving with and probably living with her husband during most of these proceedings, — and is then told for the first time that she is no longer a wife; and .that the public policy of this great country forbids that the sacred rights of her husband’s new wife should be interfered with by anything that she can do. Is this a mere dream, — an imaginary case? In almost all of its essential facts it is but a recital of a case that actually occurred within the writer’s professional experience.- But in that case the wife did accidentally hear of the proceedings just in time to prevent the entry of the. decree — and the husband suddenly and wisely disappeared. Had she been but a few days later in getting her information she would, under the authority of Parish v. Parish, supra, have been wholly without remedy.

There seem, then, to be two sides to the question. Public policy has grave responsibility resting upon it.

On the one side must be regarded the rights of the first wife and her children, — rights guaranteed to them by all the formalities and legal safeguards which the law can provide. That wife has been married under a license issued in behalf of the state with rigid requirements as to how it should be obtained; her marriage has been formally performed and registered; she has openly lived with her husband as his wife in the face, of all the world. Her children have been acknowledged by him as his; she has vested interests in his property and a vested right in his services for her" support and the support of her children. Must she, after all this, watch him at her peril and see to-it that he never leaves his home and remains away a week or a month at a time no matter what his business may require? Must she never permit him to send her off with the children for fresh air and rest, under peril of finding herself deposed and her children fatherless on her return? Is she to live in constant fear that some day she will receive a newspaper clipping from a co,unty of which perhaps she has almost never heard announcing his divorce and remarriage on the same day and then learn that because the court on that same day adjourned for the term, the decree is final and she is helpless? If ill-health requires her to. go to a hospital or a sanitarium for treatment, must she enter its doors with the fear haunting her that when she recovers her physical strength and returns to her home, it will be to find another woman installed as wife and mistress of the household and this under the full sanction of the law? That is the meaning to her of the case of Parish v. Parish, supra. That is what public policy is there said to-do for her.

But much may be said on the other side. "Where an innocent woman marries a man whom she has known perhaps for a year or for two or three years and has had no reason to suspect that he ever had a wife; when he tells her that he has lived where he never did live, or otherwise conceals his past; or where, possibly, he finally admits that he has been divorced and tells her truthfully that service was obtained by publication, but tells her also that his former wife had deserted him and that he knows nothing of her whereabouts. Suppose she investigates and finds nothing which discloses the true state of facts. What are her rights? Is she to be turned out of her home years after her marriage ? Are her children to, be declared illegitimate by a decree setting aside her' marriage and the divorce from the former wife ?

We frankly admit that we have sought in vain for a solution of this question which will do justice to both of these victims of this perjured husband, — for by the demurrer he is admitted, for the purposes of this ease, to be all that and more too, — whatever the fact may be as to- the truth of these charges of perjury and fraud.

But the question in this case goes further: Suppose that in fact there was no fraud and no perjury on the part of the party obtaining the divorce; suppose that the grounds alleged in the petition were all true; suppose that the residence of the defendant in fact was not known; suppose that it is the former wife who, angered at the present happiness of her former husband, now seeks to harass him by false and fraudulent claims! What then? Should the innocent party, having married again, be subjected to a retrial and his rights and those of his new wife be jeopardized?

But here it must be said that there is better protection against fraud and perjury; for the law requires actual notice of the pendency of this application for a reopening of a case and gives every possible safeguard against fraud! Moreover, it requires an actual trial before the decree can be reopened with ample opportunity for proof, and if the charges are false, the opposing has every opportunity of proving that fact: The parties both being in open court are both subject °to the orders of the court, — -a very different situation from an ex parte hearing in the absence of the party most directly concerned and without her knowledge.

We have read with care the two Massachusetts cases relied upon by Judge Peck as supporting the decision in the case of Parish v. Parish, supra. Both rely on this same principle of public policy. Perhaps neither of those cases could be, strictly speaking, regarded as parallel to the case at bar; but the principles at issue were in each of them discussed.

The ease of Lucas v. Lucas, 69 Mass. (3 Gray) 136, was an attempt, •by a defeated plaintiff, to reopen a divorce case, and to obtain a divorce denied him at the former trial in which his petition was dismissed. The case was considered principally upon the technical question as to whether a divorce suit is a civil action or a judicial proceeding and whether as a consequence, a writ of review should be granted. But the opinion is based finally on the question of public policy.

' The case of Greene v. Greene, 68 Mass. (2 Gray) 361 [61 Am. Dec. 454], was an action by a wife asking a divorce on the ground of desertion, but alleging that the husband had previously (and as she avers, falsely' and fraudulently) obtained a divorce against her on the ground of adultery; and, as a basis for her suit, she asks that this former decree be set aside.

The opinion in that case is expressly stated to be based on the doctrine of res judicata as settled in that case and as applied to the case of divorce. This will not help us in this case at bar, for our statute expressly opens up all eases for reconsideration within five years in contradiction of the. doctrine of res judicata, unless under the rule in Parish v. Parish, supra, a bar is established on other grounds.

But in the opinion in Greene v. Greene, supra, the court, after basing its decision on the doctrine of res judicata turns to a discussion of public policy as controlling the case and considers only the consequences that would follow a retrial without any consideration of what might follow a refusal of a retrial in a proper case. Neither of these Massachusetts cases therefore is helpful in the case at bar, except for the support which they give to the doctrine that public policy demands, in divorce cases, the adherence to a decree once rendered because of the evil consequences which are likely to follow the opening of such decree as affecting the rights of third parties.

When these eases and Parish v. Parish were decided, this question - was comparatively a.new one; but since that time the courts of almost every state in the Union have been called upon to consider it.

In some states the legislature has passed laws governing the situation of the parties, as, for instance, Missouri, which by statute has provided that “no petition for review of any judgment for divorce rendered in any case * * * shall be allowed, any law or statute to the contrary notwithstanding.” And the courts of that state hold that this statute bars the same court in the same proceeding or even courts of equity from setting aside a divorce decree in a new proceeding, where the record shows the necessary jurisdictional facts which are found by the court to exist. Hansford v. Hansford, 34 Mo. App. 262; Salisbury v. Salisbury, 92 Mo. 683 [4 S. W. Rep. 717]. The latter ease cites with approval Parish v. Parish and Greene v. Greene, supra.

In Kansas the statute allows six months after the rendition of the divorce decree. . In that state and within that period a defendant in divorce proceedings served by publication may bring suit to vacate the decree. Hemphill v. Hemphill, 38 Kan. 220 [16 Pac. Rep. 457]. And if the action is commenced within two years after the discovery of fraud in obtaining the divorce, the decree may be vacated upon a proper showing. Larimer v. Knoyle, 43 Kan. 338 [23 Pac. Rep. 487].

In Illinois a decree of divorce against one notified by publication only and who does not appear is not absolute until three years after it is entered, but conditional and subject to be set aside, even though the complainant may have married before it is set aside. Lawrence v. Lawrence, 73 Ill. 577. Also Whittaker v. Whittaker, 151 Ill. 266 [37 N. E. Rep. 1017],

And so, many other states have enacted similar statutes designed to meet the difficulties of such cases and to protect innocent parties from decrees of divorce obtained by fraud.

In Kentucky under a statute similar to the Ohio statute, when a husband has obtained a divorce on constructive service the wife is entitled to appear in court within five years and move for a- rehearing. Meyar v. Meyar, 60 Ky. (3 Metc.) 298.

In Nebraska a similar statute was formerly (1880) held not to apply to a divorce case. See the case of O’Connell v. O’Connell, 10 Neb. 390 [6 N. W. Rep. 467], but in a later case, decided in 1893, it was held that the court which had formerly allowed the decree (fraudulently obtained) could, in the exercise of its general equity powers, vacate it on proper showing of fraud and imposition, though the petition was not filed until eleven years after the decree. Smithson v. Smithson, 37 Neb. 535 [56 N. W. Rep. 300; 40 Am. St. Rep. 504].

In the case of Wisdom v. Wisdom, 24 Neb. 551 [39 N. W. Rep. 594; 8 Am. St. Rep. 215], it was held that courts of general jurisdiction have power to set aside or vacate decrees of divorce, after the term at which the decree was rendered, when obtained by fraud.

In Indiana, while the earlier decisions denied the right to a retrial of a divorce suit even within the statutory time allowed in other cases, see Ewing v. Ewing, 24 Ind. 468, yet it was held in 1883 that a decree of divorce obtained by fraud will be vacated in a direct proceeding if plaintiff has acted promptly after discovering the fraud. Earle v. Earle, 91 Ind. 27.

In New York the courts have gone a great way in granting protection to a party defrauded in a divorce proceeding. In the case of Miller v. Miller, 37 How. Pr. 1, a defendant was allowed to come in,, two years after the decree and file her motion to set aside the decree. See also, Weidner v. Weidner, 85 Hun 432 [32 N. Y. Supp. 894]; Van Rhade v. Van Rhade, 9 N. Y. S. C. (2 Thompson & Cook 491); Singer v. Singer, 41 Barb. (N. Y.) 139; Jewitt v. Jewitt, 2 N. Y. Supp. 250; Robertson v. Robertson, 9 Daly (N. Y.) 44.

In Pennsylvania it was held in the case of Fidelity Insurance Co’s. Appeal, 93 Pa. St. 242, that, “upon sufficient cause shown, decree of divorce may be vacated although the libellant is dead and more than twelve years have elapsed sjnce the decree was made. ’ ’

‘ And so, in many of the states, the courts, independently of statute, have passed upon this question.

,In Minnesota, a decrée of divorce obtained by the fraud of the-husband, was set aside in a suit commenced one year and seven months, after the decree of divorce. Young v. Young, 17 Minn. 181; Colby v. Colby, 64 Minn. 549 [67 N. W. Rep. 663].

In Illinois a divorce obtained by fraud of which the proof was. clear, was set aside on a bill of review brought aftér the lapse of fourteen years; and the fact that defendant had married again and had. children was held of no consequence. The court then held that, notwithstanding a statute providing that the defendant in a decree rendered on constructive notice may, on petition within three years thereafter, appear and answer, and that such decree if not set aside within, that time shall be ‘ ‘ deemed confirmed, ’ ’ this does not bar á defendant in a divorce decree, fraudulently obtained on publication, from filing a. bill to impeach it after the expiration of three years. Caswell v. Caswell, 11 N. E. Rep. 342 [120 Ill. 377]. And in that case the court, say, on page 347,

. ‘ ‘ The fact of appellee’s remarriage, of there being children thereof, —although we do not see in the record proofs of such children, — and of the hardship which will result to innocent persons from setting aside the decree of divorce, are dwelt upon as objections to the granting of such relief. Such ill consequences we can appreciate and must regret, but yet they do not form reason sufficient for a denial of .the exercise of the court’s power to vacate such a decree, obtained by fraud, as has, often been determined.” Citing, Crouch v. Crouch, 30 Wis. 667; Rush v. Rush, 46 Ia. 648 [26 Am. Rep. 179]; Whitcomb v. Whitcomb, 46 Ia. 437; Edson v. Edson, 108 Mass. 590 [11 Am. Rep. 393]; Bishop, Mar. & Div. Secs. 751-753a and other authorities.

While the courts of Missouri, in obedience to. a mandatory statute, follow the Ohio rule of Parish v. Parish, supra, and the supposed precedent of the Massachusetts cases of Green v. Green and Lucas v. Lucas, supra, we have found no case in any other state where, upon facts similar to those in the case at bar, relief has not been granted upon proof of due diligence on the part of the party complaining of the fraud.

But even in Massachusetts the supposed precedents of Greene v. Greene and Lucas v. Lucas have been completely departed from or explained away.

In the case of Carley v. Carley, 73 Mass. (7 Gray) 545, it was held that, “A decree of divorce, obtained by fraud, and without the libelee’s knowledge, may be set aside on the application of the libelee at the same term.”

But in a later case, the case of Edson v. Edson, supra, this whole subject' was reviewed and the court held as follows:

“This court has power, upon the petition of the party aggrieved, to vacate a decree of divorce obtained at a former term against the petitioner by false testimony, on a libel of which she had no actual notice, knowledge of which was fraudulently kept from her by the other party, and of which the court had only an apparent jurisdiction, founded on his false allegations of domicile. ”

The facts in that case were in all essentials identical with those in the case at bar, and Bigelow, C. J., in his opinion says:

“The question to be determined is, whether a judgment so obtained can be re-examined 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 maybe 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 the 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 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 practiced on the court to his gross injury. ¥e 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. * * * .

“The case of Greene v. Greene, [68 Mass.] 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 in any form or mode of proceeding, or set aside by one of the parties to the original suit, however fraudulent and conclusive 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.”

Justice Bigelow then proceeds to distinguish the case of Greene v. Greene, supra, from the case then before the court and concludes that it is not an authority for the proposition then before the court; and he thus concludes in words clearly applicable to the case now before this court,

“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 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 domicile.

“It is hardly necessary to add,” he says, “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 adjudícala, 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.”

Thus it appears that Massachusetts, like all other states of whose adjudications on this question we have knowledge, excepting only Ohio and Missouri, distinctly declares the powers of courts to open up a divorce decree at a subsequent term, on proof of fraud.

And so the courts of California hold to the same effect. See McBlain v. McBlain, 77 Cal. 507 [20 Pac. Rep. 61], and of Colorado, see Morton v. Morton, 16 Col. 358 [27 Pac. Rep. 718], and of Iowa, see Rush v. Rush, 46 Ia. 648 [26 Am. Rep. 179], and of Louisiana, see Bryant v. Austin, 36 La. Ann. 808, and of Pennsylvania, see Smith v. Smith, 3 Phila. 489, and Wanamaker v. Wanamaker, 10 Phila. 466 [30 Leg. Int. 265], and of Wisconsin, see Everett v. Everett, 60 Wis. 200 [18 N. W. Rep. 637], and of Montana, see Simpkins v. Simpkins, 14 Mont. 386 [36 Pac. Rep. 759; 43 Am. St. Rep. 641], and of North Dakota, see Yorke v. Yorke, 3 N. D. 343 [55 N. W. Rep. 1095].

The last case contains a very emphatic statement of the law:

“Courts of general jurisdiction have the inherent power, independent of any statutory provisions, and in divorce cases no less than in other cases, to set aside ánd annul any judgment or decree procured by the fraud and deceit of the successful party, practiced upon the complaining party to the action, and the court.”

Cases might be multiplied from many of the other states. All holding that fraud in obtaining a decree of divorce, like fraud in any other proceeding vitiates it, and that it can be relieved in a divorce proceeding as in any other proceeding, even after the term at which the decree was taken.

Nor does the remarriage of a plaintiff who has obtained his divorce decree by fraud protect him from the consequences of his fraud. It is so held in Montana in the case of Simpkins v. Simpkins, supra, and in Colorado, see Medina v. Medina, 22 Col. 146 [43 Pac. Rep. 1001], and in New York, Wortman v. Wortman, 17 Abb. Prac. (N. Y.) 66, and in Texas, Stephens v. Stephens, 62 Tex. 337, and in Illinois, Caswell v. Caswell, 120 Ill. 377 [11 N. E. Rep. 342], and in Iowa, Whitcomb v. Whitcomb, supra.

Nor where rights of third parties have intervened. Rush v. Rush, 46 Ia. 648, and in Wisconsin, Crouch v. Crouch, 30 Wis. 667, and in Minnesota, Bomsta v. Johnson, 38 Minn. 230 [36 N. W. Rep. 341].

Nor under the holdings in several states will even the death of the former plaintiff be a bar to vacating a decree of divorce obtained by false representations in obtaining service by publication when personal service could have been obtained. See Johnson v. Coleman, 23 Wis. 452 [99 Am. Dec. 193]; Fidelity Insurance Co’s. Appeal, 93 Pa. St. 242; Bomsta v. Johnson, 38 Minn. 230 [36 N. W. Rep. 341].

From all of these eases it appears that the view that public policy demands the upholding of all decrees of divorce, no matter how fraudulently obtained, is now practically abandoned by courts generally.

In fact with the single exception of Missouri,' where a statute specifically protects such decrees from modification at subsequnt terms ■of court, — we have found no state in the union outside of Ohio where •such a view is now held as an absolute proposition. There may, of course, be others and probably there are, but we have not been able to find them.

The difficulty, as we have said, is great. No rule can be adopted which may not cause great injustice in some of its applications.

Public policy might equally well be invoked in support of either side of the question. But what is more serious in our view than any question of public policy is this: that to upset a rule which has been observed in this state for more than half a century can only be justified after the greatest consideration of the dangers involved.

But no rule which protects and encourages perjury, and fraud, and misrepresentations, can, it seems to us, safely be permitted to perpetually impede justice. Courts have inherently the right to protect themselves and the public from fraud and perjury.

That “fraud vitiates everything” is a maxim which has grown to be of almost universal application, — and justly so. To arbitrarily, or in deference to a view of public policy which takes no account of other demands of public policy equally weighty, hold that a rule applicable to all other classes of cases, and made so applicable by statute, can have no application to divorce cases, seems only justifiable under most extraordinary conditions.

There are, as we have found, reasons which seem to us as weighty and more so. why 'the ordinary rule should apply.

This view we have based upon an attempted consideration of the principles which should govern the case and a review of all the accessible decisions of other states leads us to thé conclusion that there is now a practical unanimity among the courts of all the states in holding that in divorce cases as in all other cases, a decree obtained by fraud and perjury may, on the facts being shown, be set aside even after the, term at which the divorce decree was rendered.

For these reasons the judgment of the court of common pleas will be reversed, the demurrer to the amended petition overruled and the cause remanded to that court for further proceedings in accordance with law.

Norris and Donnelly, JJ.. concur.


source: Caselaw Access Project

author: COOK, J.

license: Public Domain

text:
    CONTRACTS — RESCISSION.
    [Harrison (7th) Circuit Court,
    November Term, 1908,]
    Burrows, Laubie and Cook, JJ.
    William S. Rogers and Bertha Rogers v. Wilber E. Simpson.
    Rescission of Contract for Sale of Land by Mutual Consf,nt.
    Under a contract for the sale of land where a vendor is unable to make a deed at the time stipulated or within a reasonable time thereafter, and the vendee does not waive such default, but neglects to tender performance on his part for an unreasonable' time, the rescission of the contract will be presumed by mutual consent, and in such case the vendee may maintain an action to recover the money advanced upon the contract.
    [Syllabus approved by the court.]
    Error to Harrison common pleas court.
    A. O. Barnes and J. B. Busbey, for plaintiffs in error.
    Perry & Rowland, for defendant in error.
   COOK, J.

The action of defendant in error, plaintiff below, was to recover on two causes of action; one for $500 damages for breach of contract in the sale of land and the other to recover back the sum of $200 paid on the sale at the time of the execution of the contract. There was a general denial to both causes of action and also a claim of offset by the defendant for claimed fraud in the sale of- some personal property. There was a verdict and judgment in favor of defendant in error.

August 1, 1906, William S. Rogers and wife, by contract in writing,, sold to Wilber E. Simpson a tract of land for the sum of $3,100 upon which sale Simpson paid $200 when the contract was executed. By the-terms of the contract Rogers and wife were on April 1, 1907, to execute to Simpson a quitclaim deed in fee simple for the premises, at which time delivery of possession of the premises was to be made; and upon the delivery of the deed and possession, Simpson was to pay $800 and execute notes and mortgage upon the premises for $2,100, the balance of the purchase money.

On April 1, 1907, nothing was done by either party respecting the contract, but several days thereafter Simpson demanded of Rogers his deed, but at the time of the demand Simpson made no tender of the $800 or of the notes and mortgage duly executed as required by the contract, and, in fact, the evidence shows that at the time of the demand he did not have the $800 or the notes and mortgage. Simpson made several subsequent demands of Rogers for the deed but at no time upon making the demand does the evidence show that he had the $800 or the notes and mortgage duly executed, or that he informed Rogers that he had the money and the notes and mortgage ready to be delivered, but as a matter of fact he did not have the $800 and the notes and mortgage duly executed at the time he made such demands for the deed or any of them.

Under the undisputed evidence, therefore, Simpson could make no claim' for damages for breach of contract, and his case must necessarily fail upon that cause of action.

This is distinctly held in the case of Raudabaugh v. Hart, 61 Ohio St. 73 [55 N. E. Rep. 214; 76 Am. St. Rep. 361].

The next question that is made is, could Simpson recover back the $200 paid upon the contract set up in his other cause of action ?

The agreement of Rogers and wife was that they were to convey the land by a quitclaim deed in fee simple on April 1, 1907, when possession was to be delivered. On April 1, 1907, Rogers' and wife did no.t have a complete title for the land; they only had title for the undivided one-third part of the land. They., were unaware of the defect in their title and endeavored to perfect it by obtaining quitclaim deeds from the owners of the other interests, but up to the time of the trial of the case they did not have a complete title. This amounted to a rescission of the contract upon their part. Demand had been made upon them under the contract for a deed in accordance with the contract; this they refused for the reason they could not execute such deed and as Simpson was also not in position to perform the terms of the contract on, his part, he is presumed to consent to the rescission. Such consent, however, did not deprive him of the right to be placed in the same position as before the contract was made. He should not be a loser by the mutual rescission of the contract.

In the case of Mowry v. Kirk, 19 Ohio St. 375, it is held:

“The delinquency of the vendee in failing to tender payment for a week after the contract was made, gave rise to the conclusive presumption, as against him, of his assent to a rescission of the contract, and authorized the vendor to act on that presumption.”

In the case of Lewis v. White, 16 Ohio St. 444, it is held:

“Generally, in contracts of this kind,.the parties being free by mutual consent to enter into them, they are, by like mutual consent, free to rescind them. And where the vendor, by reason of an outstanding incumbrance, is unable, for more than two weeks after the time fixed by the contract, to convey the ‘perfect title’ which he was bound to furnish; and the vendee then demands from the vendor such conveyance, and offers to perform the stipulations of the contract on his part; and then, on the failure of the vendor to comply with such demand, notifies him that he rescinds the contract, and thereafter treats the same as rescinded, and the vendor remains delinquent for an unreasonable time thereafter, his consent to a rescission of the contract is conclusively presumed from his delinquency.”

On page 454, in the opinion, it is said:

“Now, these parties were free, by mutual consent, to enter into this contract; and they were as free, by like mutual consent, to rescind, it. On May 8, and from thence forward, the vendee actually and in terms consented to its rescission. And the vendor, by a delinquency on his part unwaived by the vendee, and unreasonable in itself, is conclusively presumed to have given a like consent. And such is the doctrine of the boobs. Parsons, Contracts 677, et seq., says: ‘Generally, as a contract can be made only by the consent of all the contracting parties, it can be rescinded only by the consent of all. But this consent need not he expressed as an agreement. If either party, without right, claims to rescind the contract, the other party need not object, and if he permit it to be rescinded, it will be done by mutual consent. Nor need this purpose of rescinding he expressly declared hy the one party, in order to give to the other the right of consenting, and so rescinding. There may be many acts from which the opposite party has a right to infer that the party doing them would rescind; and generally where one fails to perform his part of the contract, or disables himself from performing it, the other party may treat the contract as rescinded.’ * * *

“And we can see no reason why, on the facts assumed, the vendee has not a right, under his cross petition, to recover back the money paid in hand by him on the making of the contract of sale. ’ ’

We are therefore of opinion that the cause of action of plaintiff’s petition wherein he sought to recover back the amount he had paid on the contract is well founded and as he recovered no greater sum than he was clearly entitled to, the judgment must be affirmed.

Burrows and Laubie, JJ., concur.


author: WILDMAN, J.

text:
    RES ADJUDICATA.
    [Lucas (6th) Circuit Court,
    January 16, 1909.]
    Parker, Wildman and Kinkade, JJ.
    Ellen St. Aubin v. Toledo.
    Decision Directing Verdict for Defendant upon Defective Petition Does not Preclude Bringing Another Action.
    A decision of the common pleas holding a petition insufficient in that it fails to state facts justifying its submission to the jury and directing a verdict for the defendant, is not res adjudicata of an issue of fact in another suit based upon the same cause of acU and between the same parties.'
    [Syllabus approved by the court.]
    Error to Lucas common pleas court.
    Peter Emslie, for plaintiff. '
    C. A. Northup and C. H. Masters, for defendant.
   WILDMAN, J.

This is an error proceeding to reverse a judgment of the court of common pleas rendered in favor of the defendant below, who is the defendant here, upon the sustaining of a general demurrer to plaintiff’s petition. Although the petition in the first instance clearly discloses facts originally constituting a cause of action, it adds allegations which are claimed by defendant to show that the right of the plaintiff is barred by a prior adjudication. The petition does allege the beginning of a former suit, its partial trial, a motion to arrest the case from the jury and says in substance that the court, holding the petition to be insufficient directed a verdict for the defendant. It is not averred that .either a verdict or judgment was rendered. There is in the present case, however, no demurrer on the special ground that the former action’ is still pending and while the petition does not in terms say that the former suit went out of court upon the court’s directing the jury to return a verdict, it is evident that the pleader really intended to charge that. Indeed, counsel on both sides have construed this ■ petition as treating the former action as at an end, as having been disposed of by the direction of the court to the jury to render a verdict. In one of the adjudications of the Supreme Court it is stated, in substance, that the rendering of a verdict by the jury after the court has directed one to be rendered is little more than a technical or formal thing. That the submission of a •case to the court on motion to direct a verdict, and the ruling of the court upon that motion, is a decision of the issues to such an extent that it is treated as the final submission to the court, so that a party is not thereafter permitted to dismiss his cause without prejudice. That was held in a case in the Cuyahoga circuit in which I sat with two of the judges of that circuit, Turner v. Car Co. 29 O. C. C. 181 (9 N. S. 65); affirmed, Turner v. Car Co. 79 Ohio St. 153 [86 N. E. Rep. 651], although the court at the time the plaintiff attempted to dismiss had not really directed the verdict, but had only expressed its intention to do so, having upheld the contentions of the defendant. We are disposed then to construe this petition, somewhat liberally and broadly, but in accordance with the construction which has been placed upon it by counsel on both sides, as alleging that the former action was determined, and as assuming that the jury did what they undoubtedly should have done and probably did do, render a verdict as directed by the court, and that the court thereafter did what the court was required to do, that is, render a judgment upon the verdict in favor of the defendant. That being so, the question is, is that an adjudication of the cause of action so as to bar the present suit?

The case of Rafferty v. Traction Co. 25 O. C. C. 411 (1 N. S. 538), was decided by this court while Judges Parker, Hull and Haynes constituted its membership. The opinion was rendered by Judge Hull and the syllabus is:

“A cause of action does not become res ad judicata by reason of the fact that a former suit, involving the same subject-matter was dismissed on the grounds that the petition did not state facts sufficient to constitute a cause of action.

“A plaintiff in such a case stands in the position of one to whose petition a demurrer has been sustained; and the fact that no demurrer was interposed, but instead a motion to exclude the plaintiff’s evidence .and direct a verdict for the defendant, which was granted and judgment rendered on such verdict, does not change the position of the plaintiff nor render his suit res adjudicata.”

This ease went to the Supreme Court and was affirmed as entitled, Toledo Trac. Co. v. Rafferty, 71 Ohio St. 497, and the affirmation by the Supreme Court is important, in view of the fact that it is said by the Supreme Court, although the ease is unreported in other respects, that the judgment is affirmed on the grounds stated in the opinion of the circuit court of Lucas county, Rafferty v. Traction Co. supra. In other words, the Supreme Court seem to have endorsed the views expressed, by Judge Hull.

The petition before me in the case at bar states that upon the former petition the court concluded that the petition was insufficient, that it did not state facts, and for that reason directed the jury to render a verdict for the defendant. It is impossible for us in view of this, allegation to distinguish the case before us from Rafferty v. Traction Co. supra. In other words, we are compelled to hold that the decision of' the court of common pleas in the former suit begun by Ellen St. Aubin that the petition therein was insufficient in that it did not state facts to. justify letting the case go to the jury, and the consequent direction of' a verdict for the defendant, did not adjudicate the issue of fact presented in the present suit, and I have already said that the present peti-r tion in other respects than those referred to is abundantly sufficient.. We think, therefore, that the court below erred in holding that the demurrer should be sustained to this petition upon the ground that the petition does not state facts constituting a cause of action. For that reason the judgment is reversed and the cause remanded with directions to overrule the demurrer to the petition, and for further proceedings according to law.

Parker and Kinkade, JJ., concur.


author: SWING, J.

text:
    EXTRADITION — HABEAS CORPUS.
    [Hamilton (1st) Circuit Court,
    December 5, 1908.]
    Swing, Giffen and Smith, JJ.
    Craig v. Hamann, Sheriff.
    Pbesumption as to Regularity op Extradition Proceedings.
    Regularity of proceedings for extradition will be presumed and that the prisoner is held by virtue of a warrant of extradition, where i't appears in a bill of exceptions on error to a refusal of a writ of habeas corpus, that a crime was committed in the state demanding extradition, that theaecused has fled to the state upon which requisition is made, that the demand was properly made under the federal laws and that the governor was authorized to grant the warrant, although the record fails to disclose what action was taken by the governor.
    [Syllabus approved by the court.]
    Error to Hamilton common pleas court.
    Scott Bonham, for plaintiff in error.
    J. F. Rouse, for defendant in error.
   SWING, J.

This case is here on error to the judgment of the court of common pleas, in which court the application of the plaintiff in error to be discharged from the custody of the sheriff, on habeas corpus, was denied. It does not affirmatively appear from the record in this ease that there was error in the judgment of the court of common pleas to the prejudice of said plaintiff in error.

The requisition of the governor of the state of Indiana on the governor of Ohio was properly made under the laws of the United States, and the governor of Ohio properly granted the request of the ■extradition of said Craig. We find no defect in either the form or substance of the matters required under the statutes relating to extradition. Substantially a crime under the . laws of Indiana was charged to have been committed by said Craig, and that he had fled from justice in said state to the state of Ohio, and upon the papers set forth in-the bill of exceptions the governor of Ohio was authorized to grant a warrant of extradition, and we presume this was done, although the record-•of the ease does not disclose what action was taken by the governor of Ohio. We presume furthermore that the said Craig was held by virtue of said warrant although the record does not show this. It is sufficient to say that it does not appear from the record that there was error in the judgment of the court of common pleas in refusing to discharge the prisoner on the evidence offered at the trial.

Giffen and Smith, JJ., concur.


author: DONAHUE, J.

text:
    ERROR — WILLS.
    [Cuyahoga (8th) Circuit Court,
    June 30, 1908.]
    Craine, Taggart and Donahue, JJ.
    (Judges Craine, Taggart and Donahue of the fifth circuit sitting in place of Judges Winch, Henry and Marvin.)
    Anna D. Wadsworth v. D. W. Purdy et al.
    1. Argument in Will Contest Pressing Order of Probate Judge to Influence. Jury Constitutes Misconduct of Counsel.
    An order admitting a will to probate by force of Sec. 5926 Rev. Stat. is primei facie evidence of its validity only. Hence, in a proceeding to-contest a will under Secs. 5858 Rev. Stat., et seq., permitting a statement, by counsel in argument to the jury to the effect that the probate judge, experienced in such matters, had admitted the will to probate on the- ■ same evidence heard in the proceeding to contest and that it would be presumptuous in the jury to hold differently, constitutes misconduct of counsel prejudicial to the rights of contestants, for which a judgment based on a verdict sustaining the will is reversible.
    2. Failure to Call Attention to Errors Excepted to on Motion for New Trial does not Preclude Review on .Error.
    A trial court is presumed to know what errors occur at the trial of a cause- and, having certified that a bill of exceptions, showing the errors excepted to is true, the fact that the attention of the court was not called thereto by affidavit or otherwise upon a motion for new trial cannot preclude a reviewing court from the consideration thereof on error.
    3. Capacity to Attend to Ordinary Business, to Know and Understand Business in which Testator was Engaged Lacks Essential Requisites of Testamentary Capacity.
    Mental capacity to make a will requires a comprehension of the nature-of the act testator is performing, an understanding of the extent of property of which he is disposing, a realization of the relation which he-holds to those who have claim upon him and ability to make a rational selection among them; “capacity enough to attend to ordinary business, and to know and understand the business he was engaged in,” lacks essential requisites of testamentary capacity to make a will and to so charge is misleading and prejudicial.
    4. Eccentricities and Delusions Affecting Mental Capacity.
    A testator’s eccentricities, peculiarities or delusions must not affect either . the natural or selected objects of his bounty or interfere with his testamentary capacity to make a will; whether or not such conditions of mind affect testamentary capacity is a question for the jury under proper instructions and to charge that they are of no consequence if testator has sufficient mental capacity to transact ordinary business and of understanding the nature of the business in hand, is prejudicial.
    [Syllabus approved by the court.]
    Error to Cuyahoga common pleas.
    H. H. Johnson and E. F. Voris, for plaintiff in error.
    Henry & Couse and W. H. Boyd, for defendants in error.
   DONAHUE, J.

This proceeding in error is brought to reverse the judgment of the common pleas court of this county in an action in said court, wherein Anna D. Wadsworth sought to set aside the will of H. W. Baird, deceased, claiming, first, that said will was not properly executed, second, that the testator had not mental capacity to make a will.

Upon the trial of the cause in common pleas court the jury returned a verdict sustaining the will, and judgment was rendered accordingly. A motion for new trial was filed and the samé was overruled. The principal errors now urged upon the attention of this court are, first, misconduct of counsel in the argument of the cause; second, error in the charge of the court; third, that the verdict of the jury was not sustained by sufficient evidence.

First, as to misconduct, of counsel. It appears that in the argument of this cause one of the counsel for defendants was permitted to, and did, argue to the jury, in effect, that the same evidence' now before the jury was offered to Judge Hadden of the probate court, and that he, with all his experience in such matters, had sustained the will and admitted it to probate, and that it would be presumptuous in the jury to hold different from Judge Hadden. This all appears in the bill of exceptions, but it is also certified that this matter was not called to the attention of the court by means of affidavit or otherwise upon the motion for new trial. We think that is not important. There are a great many other errors complained of in this bill of exceptions that were not brought to the attention of the court upon the motion for new trial by affidavit, deposition or oral testimony. The trial court is presumed to know what occurred at the trial of this cause as it now appears by the bill of exceptions. In fact he certifies this'bill of exceptions to be a'true bill, and we think the matter was clearly before him upon the motion for new trial, as much as was the admission of evidence or errors in the charge of the court, or any other matters or things excepted to by counsel for plaintiff in error upon the trial of said cause, and it is now before this court for review. We are unanimously of the opinion that this argument was improper and prejudicial to the rights of the plaintiff in error.

The method provided by statute (Secs. 5858-5866 Rev. Stat.) for contesting a will is exclusive, Mosier v. Harmon, 29 Ohio St. 220, and the statute providing for the probating of a will does not provide that the contest may be had touching its admission to probate.

Section 5926 Rev. Stat. provides,

“The said court shall cause the witnesses to such will, and such other witnesses as any person interested in having the same admitted to probate, may desire, to come before such court; and said witnesses shall be. examined in open court, and their testimony reduced to writing, and filed.”

From this statute it clearly appears that only witnesses to the will and such other witnesses as may be offered by parties interested in having the will admitted to probate, can be heard. Parties interested in not having the will admitted to probate have no right to call witnesses. It is practically to all intents and purposes a proceeding ex parte in its nature.

In the case of Bolles v. Harris, 34 Ohio St. 38, at page 41, Judge White, speaking for the Supreme Court, says:

“The jurisdiction exercised in all such cases by the court and jury is virtually that of a court of probate, charged with the duty of finally establishing or rejecting the will. The proceeding to admit the will to probate in the first instance, is in its nature ex parte; the proceeding by contest is a suit inter partes.”

Citing in support thereof, Mears v. Mears, 15 Ohio St. 90; Converse v. Starr, 23 Ohio St. 498.

So that what Judge Hadden had done with this will was of no importance, except that by the force of the statute, it became prima facie evidence of the validity of this will, and cast the burden upon the contestors to show its invalidity. It is true that in this particular case it so happens that the same evidence is used in the common pleas court, touching the execution of the will, that was heard by Judge Hadden, and if there would be any excuse in any case for this argument, it would be this ease, but we think that because the action is ex parte, and because the judgment of that court covered all the questions touching the validity of this will, as well as its proper execution, it is unfair to say that the jury should have the right to consider what Judge Hadden had done touching the same. The effect of that judgment was simply to make a prima facie case in favor of the will, but upon this contest, the case, except for that, is heard de novo, and the jury ought not to be influenced by the action of Judge Hadden in the case, especially when his judgment was rendered in an ex parte proceeding, where counsel, perhaps, were not present, and if present, had no absolute right to be heard; and Judge Hadden’s judgment upon this case made in the common pleas court where counsel for all parties, had full right to be heard, and were heard, might have been entirely different. It was the duty of the common pleas court to interfere when its attention was called to this argument and to instruct that the judgment of the probate court had no other or further effect than to cast the burden upon contestors. The court, by permitting this argument, in effect, said to the jury,

“You have a right to consider Judge Hadden’s action as authority in this particular case, and if a man of his experience and learning should hold this will upon this same evidence to have been properly executed and admitted to probate as a last will and testament, you should consider his action in connection with the evidence offered in determining what you ought to do in this case.”

We, therefore, think the argument of counsel in this respect was improper and that the court erred to the prejudice of plaintiff in overruling the objections of plaintiff in error’s counsel to the same, and in not then and there correcting in the mind of the jury any false impressions it may have received by reason of such argument.

The next error seriously urged upon this court is, as to the charge of the court, and particularly as to this language:

“If, therefore, you believe from the evidence that when Mr. Baird ¿xecuted the papers in dispute he had capacity enough to attend to his ordinary business, and to know and understand the business he yas engaged in, then he had the right and the capacity to make such a will, and you should find that the papers in dispute are his will.”

We do not think this is the correct definition of testamentary capacity, but whether it is prejudicial or not to plaintiff in error is a much more serious question. A person may lack in capacity for the transaction of ordinary business and lack in contractual capacity, and yet many have testamentary capacity. Mental capacity to make a will is said to exist where a testator has an understanding of the nature of the business in which he is engaged, a recollection of the property he means to dispose of, the persons who have a claim upon his bounty, and the manner in which it is to be distributed.

In 11 Am. & Eng. Enc. Wills 151, cited by counsel for plaintiff in error, we find this definition:

“In order to make a valid will, a testator must have sufficient capacity to comprehend the nature of the act he is performing; he must understand the extent of the property.of which he is disposing; he must comprehend the relation which he holds to those who have claim upon him, and be capable of making a rational selection among them.”

We are inclined to the opinion that this is the best definition that can be given of testamefitary capacity and includes all the requisite elements thereof, and any charge which fails to give this, in substance,, is defective. The court, in this case, did, on page 390,. substantially give this charge, but in other places throughout the charge the jury is. told, in effect, that if he knew and understood the business he was engaged in and had capacity enough to attend to ordinary business, then: he had sufficient testamentary capacity to make a will, but in this behalf we think the charge as a whole was misleading.

Counsel for plaintiff in error further complain of this language:

“But if you should find from the evidence that during some-portions of his life. Mr. Baird had eccentricities, or peculiarities, ,or even an insane delusion, or partial insanity on the subject of socialism, 'or any other subject, and should find from the evidence that at the* time he made the writing in question he had sufficient mind and! memory to understand his ordinary business, and that he knew and understood the business he was engaged in and intended to make such, a will, you should then find it to be his will.”

We think this charge is erroneous in that it does not state that before the jury shall find that these delusions would not interfere with his testamentary capacity, that they must also find that the same did not affect either.the natural or the selected objects of testator’s bounty..

In the case of New Jerusalem Church v. Crocker, 4 Circ. Dec. 619 (7 R. 327), it is held, in the fifth paragraph of the syllabus, that:

“The existence in the mind of a testatrix of mere delusions which do not affect either the natural or the selected objects of her bounty,, is not inconsistent with testamentary capacity.”

On page 623, Judge Shauek, in the opinion, says:

“The existence of delusions which in no way relate to those who-are excluded from or embraced in the provisions of a will, are not at all inconsistent with testamentary capacity.” Citing, in support of this proposition, Rice v. Rice, 53 Mich. 432 [19 N. W. Rep. 132] Hollinger v. Byrnes, 37 N. J. Eq. 221; Otto v. Doty, 61 Iowa 23 [15 N. W. Rep. 578], and Smith, Will of, 52 Wis. 543 [8 N. W. Rep. 616; 9 N. W. Rep. 665; 38 Am. Rep. 756].

This question is also discussed at some length, and the same conclusions reached in the case of Edwards v. Davis, 11 Dec. Re. 876 (30 Bull. 283); Joslyn v. Sedam, 7 Dec. Re. 350 (2 Bull. 147).

If Mr. Baird had any delusions, peculiarities, eccentricities, or any foibles of any .kind or character carried to an unreasonable extent, it is not important whether it was socialism, politics, religion, philosophy •of energy, perpetual motion, or what not, the subject of his delusion is of no importance to court or jury. The only question is, whether or not it was carried to such an extent as to amount to insanity, or a delusion that did affect his judgment and interfere with him exercising a rational judgment in the making of his .will. And if the jury found that he had such delusions, and that these delusions did affect either the natural or selected objects of his bounty, then the verdict should have been against the will, and not in its favor, for it cannot be said that a man has testamentary capacity where insanity or delusions control his judgment in the disposition of his estate, and the court, instead of saying that these delusions were of no consequence, provided he had sufficient mental capacity to transact ordinary business and was capable of understanding the nature of the business in hand, should have added, also, the further condition, provided that these delusions did not affect either the natural or selected objects of his bounty, and did not distort his judgment and prevent him making a rational disposition of his property, and the failure of the court so to do was prejudicial error.

Coming now to the consideration of the question that this verdict is not sustained by sufficient evidence, while this court is loath to disturb a verdict in a will case, finding either for or against the validity of the will, yet we are of the opinion that Sec. 5865 Eev. Stat. requires the same review of the evidence in such cases as in all other cases. Kettemann v. Metzger, 13-23 O. C. C. 61 (3 N. S. 224).

A majority of this court is of the opinion that in view of the im-' proper arguments in the cause and the error of the court in its charge, that the jury was misled thereby and that the verdict is not sustained by sufficient evidence and is against the manifest weight thereof, anrj the same ought to be submitted to another jury, under proper instruction, and with proper argument, but in view of the fact that it may be necessary to retry the case, this court refrains from further discussion of the evidence, for the reason that it might in some way prejudice or affect the judgment of another jury trying this cause, but for error in the charge, for error in failing to correct the argument of counsel, and not explaining to the jury then and there the only effect which could be given to the judgment of the probate court admitting this will to probate, and because the verdict is against the manifest weight of the evidence, the judgment of the common pleas court is reversed and the cause remanded to the common pleas court for new trial.

Exceptions of defendants in error noted.

Taggart, J., concurs.

Craine, J., dissents from the holding that the verdict is against the manifest weight of the evidence, but concurs in the reversal for the other two reasons assigned.


text:
    PLEADING.
    [Hamilton (1st) Circuit Court,
    1908.]
    Swing, Giffen and Smith, JJ.
    Jane Morris v. Anchor Fire Ins. Co. et al.
    Filing Several Petitions against Several Defendants on Separate Causes of Action.
    A liberal construction of the civil code in furtherance of justice is required. Hence, where separate causes of action against several defendants are improperly joined, the proper procedure is to permit the plaintiff to file severál petitions against each defendant as provided by Sec. 5064 Rev. Stat.
    Mouliraier, Bettman & Hunt, for plaintiff in error.
    Wade Cushing, for defendants in error.
   SWING, J.

The demurrer to the petition on the ground that separate causes of action against several defendants are improperly joined was properly sustained, but we think the court erred in dismissing the petition. What the court should have done was to permit the plaintiff to have filed several petitions against each defendant by analogy with Sec. 5064 Rev. Stat. This section does not in express terms apply to this case. It was adopted long before the eighth cause of demurrer was made a ground for demurrer; but there would seem to be no reason why Sec. 5064 should apply to the seventh cause for demurrer and not apply to the eighth cause for demurrer. The code should be liberally construed in furtherance of justice as is shown by See. 5114 Rev. Stat., whereby amendments are provided for, and the general principles applicable to code pleading, and we think this principle broad enough to cover this case. To some extent it avoids costs and litigation and does no substantial harm to the defendants.

Giffen and Smith, JJ„ concur.


author: SMITH, J.

text:
    ASSESSMENTS — EMINENT DOMAIN.
    [Hamilton (1st) Circuit Court,
    May 18, 1907.]
    Swing, Giffen and Smith, JJ.
    Cincinnati (City) v. Philip Morton.
    Condemnation Proceedings Separately Determining Compensation of Several Tracts Involved Conform to Sec. 16 of the Municipal Code.
    In condemnation proceedings for municipal purposes involving several pieces of property, allowing a jury, sworn and impanelled to make the full inquiry, to hear testimony as to value and assess damages as to one tract before proceeding with the inquiry as to the remaining property, conforms to Sec. 16 of the municipal code (Lan. Rev. Stat. 3593; B. 1536-109), prescribing that “the assessment shall be * * * so made that the amount payable to the owners of each lot or parcel of land may be ascertained.”
    [For other cases in point, see 4 Cyc. Dig., “Eminent Domain,” §§ 633-635. —Ed.]
    Error to Hamilton common pleas court.
    Jesse Lowman, for plaintiff in error:
    H. L. Gordon and A. H. Morrill, for defendant in error.
   SMITH, J.

We see no objection to the procedure had in the trial court allowing the jury to hear the testimony as to the value of one piece of property separate from the others, and then assessing the compensation for the same to the owner before proceeding to ascertain the value of another piece.

Condemnation proceedings must be brought before a single jury, which was done in this case; and when the jury was impaneled it was sworn but once to make the whole inquiry and assessment.

Revised Statutes 2245 (Lan. 3593; B. 1536-109) provides that “The assessment shall be in writing, signed by the jury, and shall be so made that the amount payable to the owners of each lot or parcel of land may be ascertained.”

As disclosed by the record herein, we think the action of the court below is in conformity with this section, and cannot be complained of by the city.

Judgment affirmed.

Swing and Giffen, JJ., concur.


author: GIFFEN, J.

text:
    LIMITATION OF ACTIONS — NUISANCE—SEWERS.
    [Hamilton (1st) Circuit Court,
    June 22, 1907.]
    Swing, Giffen and Smith, JJ.

      John Schrenk, Jr., v. Cincinnati.
    Statute oe Limitations on Pbescbiptive Right to Empty Sewage.
    The time required by a municipality to create by prescription the right to . empty sewage into a natural stream of water is twenty-one years.
    Error to Hamilton common pleas court.
    M. G. Heintz, for plaintiff in error.
    Jesse Lowman, city solicitor, for defendant' in error.

      Affirmed by Supreme Court, without report, Cincinnati v. Schrenk. 80 Ohio St. 705.

   GIFFEN, J.

The court charged- the jury as follows:

“If you find from the evidence that Bloody run, as it flowed through, plaintiff’s property, has been polluted by the city of Cincinnati for long period of time, and that the stream and its deposits along its banks, and the smell, if any, arising from its waters are but different in slight degree from what they have been for many years as it flowed through plaintiff’s, property, then the,plaintiff cannot recover.”

And again as follows:

“The burden of proof is on the defendant to show a prescriptive right to use the stream for sewer purposes and to show that the water as it flowed through plaintiff’s premises was substantially -as it was in 1903 for a period of time more than four years prior to that date.”

The jury naturally would and no doubt did infer from these instructions that the city could acquir'e a prescriptive right to use ■ the stream for sewer purposes by an uninterrupted use of the same in that manner for any period of time more than four years and less than twenty-one years. Although in another part of charge the court said that such right could be acquired in twenty-one years, it nowhere appears in the charge that the period of time required to create the right must be at least twenty-one years.

The instructions given were erroneous and prejudicial, for which the judgment will be reversed and cause remanded for a new trial.

Swing and Smith, JJ., concur.


author: DUSTIN, J.

text:
    OFFICE AND OFFICERS — RAILROADS.
    [Franklin (2nd) Circuit Court,
    February 23, 1909.]
    Sullivan, Dustin and Allread, JJ.
    State of Ohio, ex rel. John Sullivan v. James C. Morris.
    1. Appointment of Railroad Commissioner by Outgoing Governor Invalid.
    The legislature, in' providing that members of the Ohio Railroad Commission shall be appointed in January for terms of office beginning February 1, intended that in years when a new governor takes his seat on the second Monday in January, the rule that an outgoing official cannot appoint for a term to begin after his own has expired shall be operative.
    2. “Recess Appointments” of Officials not Valid Unless After sine die Adjournment of Legislative Session.
    The adjournment of the legislature referred to in this act is the sine die adjournment of the session whether regular or extraordinary, and not a mere recess for a specified period; and a “recess appointment” has no validity unless made after final adjournment of the session.
    [Syllabus by the court.]
    Quo Warranto.
    Booth, Keating, Peters & Pomerene, for plaintiff:
    Appointment of railroad commissioner by retiring governor, invalid. State v. McGollister, 11 Ohio 46; State v. Choate, 11 Ohio 511; State v. Thompson, 6 Circ. Dec. 106 (9 R. 161) ; State v. Ermston, 8 Circ. Dec. 83 (14 R. 614), affirmed, Ermston v. State, 57 Ohio St. 665; 23 Am. & Eng. Ene. Law (2 ed.) 347; Mechem, Pub. Off. & Off. Sec. 133; Throop, Pub. Off. Sec. 92; People v. Ward, 107 Cal. 236 [40 Pac. Rep. 538]; Ivy v. Lusk, 11 La. Ann. 486; State v. Meehan, 45 N. J. L. 189; State v. O’Leary, 64 Minn. 207 [66 N. W. Rep. 264]; State v. Van Buskirk, 40 N. J. L. 463; State v. Gatlin, 84 Tex. 48 [19 S. W. Rep. 302] ; Columbus v. Board of Elections, 13 Dec. 452; Allen v. Parish, 3 Ohio 187.
    The appointment of the relator was not invalid because made on the first day of February. People v. Murray, 15 Cal. 221; Saunders V. Grand Rapids, 46 Mich. 467 [9 N. W. Rep. 495]; People v. Allen, 8 Wend. (N. Y.) 486; Census Superintendent, In re, 15 R. I. 614 [15 Atl. Rep. 205],
    The senate had adjourned. 5 Hinds, Precedents of House Representatives See. 851, 852, 6607; Corwin v. Comptroller-General, 6 Rich. (S. C.)- 390; State v. Smith, 44 Ohio St. 348 [7 N. E. Rep. 447]. ■
    Daugherty Todd, for defendant.
   DUSTIN, J.

This is an action in quo warranto brought to determine' whether John Sullivan or James C. Morris, or either of them, has been legally appointed to the office of railroad commissioner of Ohio.

January 4, 1909, Andrew L. Harris, then governor of Ohio, pursuant to “An act to regulate railroads, * * * create a board of railroad commissioners,” etc., passed April 2, 1906 (98 O. L. 342; Lan. Rev. Stat. 5269a; B. 244-11), appointed James C. Morris as one of the commissioners provided for by said act, for the term of six years beginning February 1, 1909. The Ohio senate being then in session, on the same day confirmed said appointment. January 29, 1909, said Morris took and subscribed his oath of office, as provided for in the statute.

The term of Andrew L. Harris, as governor, expired at noon, January 11, 1909, and Judson Harmon reigned in.his stead.

. On January 21, 1909, Governor Harmon assumed- to appoint the relator to the same office, and fqr the same term as Governor ¡Harris had appointed Morris, and sent his name to the senate for confirmation. Without acting upon .the said appointment of Governor Harmon, the senate pursuant to a joint resolution adopted by it and the house of representatives adjourned January 22, until February 15.

On the first day of February, Governor Harmon, assuming to.act under the power granted by the same law, to appoint a railroad commissioner during an adjournment of the senate without action upon his. previous selection, again appointed the relator, who forthwith took and subscribed his oath of office.

The question is, which of these two appointments, if either, is valid ?

The first section of the act in question reads as follows:

“A railroad commission is hereby created to be composed of three-commissioners. Within sixty, days after the passage.of this act the governor shall, by and with the advice and consent of the senate, appoint such commissioners, but no commissioner so appointed shall be-qualified to act uritil so confirmed, unless appointed during the adjournment of said senate. The term of one such appointee shall terminate-on the first Monday in February, 1909; the term of the second such appointee shall terminate on the first Monday in February, 1911; and the term of the third such appointee shall terminate on the first Monday in February, 1913. In January, 1909, and biennially thereafter, there shall be appointed and confirmed, in the same manner, one commissioner for the term of six years from the first Monday in February of such year. Each commissioner so appointed shall hold his office until his successor is appointed and qualified. Any vacancy shall be filled by appointment by the governor for .the unexpired term, subject to confirmation of the senate, but any such appointment Shall be in full force until acted upon by the senate.”

It is conceded to be the general rule, that an outgoing official cannot appoint for a term to begin after the expiration of his own.

But there is a recognized exception to this rule, which is stated in State v. Ermston, 8 Circ. Dec. 83 (14 R. 614); affirmed, Ermston v. State, 57 Ohio St. 665, as follows:

“But when the statute expressly provides that the appointment shall be made on a certain day, or as soon thereafter as practicable, the-appointment may be made notwithstanding that the term of such appointee would commence after the expiration of the term of the appointing officer. ’ ’

It is claimed that the appointment of Morris is valid, because within the above exception, since the law in question provides that the appointment for the term to begin February 1, 1909, shall be made in January, 1909.

It must be presumed that the ■ legislature contemplated that the' term of one governor would expire January 11, 1909, and the term of' his successor begin on the same day; and that a literal construction of' the statute would allow either governor to make the appointment in that month.

But it is also to be presumed that the legislature did not intend to leave the matter open to doubt, or to a race and contest between the-two governors as to which one should make the appointment.

In our view the only way to harmonize these presumptions with the-apparent uncertainty of the -appointing power arising from a literal construction of the statute, is to hold that the legislature intended (not. having otherwise provided) that the general rule above noted should govern.

The familiar principle that the common law prevails, except when abrogated by statute, needs no citation.

We conclude, therefore, that the appointment of Morris by the moribund governor, was invalid.

The next question is, was the appointment of Sullivan, February 1, legal.

It is based upon the right of the governor to appoint during an. adjournment of the senate without action by that body upon his appointment.

The so-called resolution of adjournment is as follows:

“Be it resolved, by the general assembly of the state of Ohio, that. the house and senate recess from January 22, 1909, to convene on February 15, 1909, at 1:30 p. m. ; that during said recess the committees of 'the house and senate respectively shall-consider 'such matters as may properly be before them, or may pertain to their duties, and that' the extraordinary session of the seventy-eighth general assembly adjourn sine die on March 12, 1909, at 4:00 p. m.”

The senate journal of January 22 states that:

“On motion of Mr. Mather, the senate adjourned until 1:30 p. m., February 15, 1909, in accordance with senate joint resolution No. 7.”

It will be observed that the joint resolution uses the word “recess,” and provides for the ad interim work of committees, and for the adjournment sine die on the twelfth of March; and the senate journal, referring to the same action as the joint resolution, uses the word “adjourned.”

It’is claimed on behalf of the relator that the words “adjourn” and “recess” are synonymous and used interchangeably in legislative records. Authorities seem to sustain that view, but we think the adjournment referred to in the act in question is a sine die adjournment of the session, whether regular or extraordinary.

If a recess for three weeks is such an adjournment as the law contemplates,, why would not -an adjournment for a week or even a day do as well? An adjournment from Friday to Monday would allow a lively governor to do a lot of'things on Saturday without “the advice and consent of the senate,” and perhaps greatly to the latter’s embarrassment. It is inconceivable that the senate when it passed the bill providing for a railroad commission e.ontemplated any such possible treatment. In providing for its own “advice and consent” in the matter of, appointments, it undoubtedly meant to give itself reasonable time in which to consider the same. For the consideration of Governor Harmon’s appointment it had had only one day prior to the recess. Committees were instructed to proceed with the consideration of matters before them.- So that nothing but legislative action was in abeyance. All matters were carried over to be acted upon or not, at a later date, before final adjournment.

We think it was the legislative intent in passing the act in question to give the senate the entire session, if necessary, in which to consider appointments, as well as all other matters before it. If it should adjourn the session without action, then the governor may" appoint. '

Entertaining, these .views, we, therefore, hold that the appointment of .the relator by Governor, Harmon February, first, was invalid, the senate not having rejected his appointment of January 21, and not having adjourned the session sine die.

The defendant, Mr. Mprris, of course, holds over as a railroad commissioner, but neither he nor Mr. Sullivan has been legally appointed to the office for the term beginning February 1, 1909.

Decree accordingly.

Sullivan and Allread, JJ., concur.


author: WINCH, J.

text:
    APPEAL.
    [Cuyahoga (8th) Circuit Court,
    January 25, 1909.]
    Winch, Marvin and Metcalf, JJ.
    (Judge Metcalf of the seventh circuit sitting in place of Judge Henry.)
    In re Hartford Street, Cleveland.
    Proceedings to Vacate Streets are Special Proceedings and not Appealable.
    A proceeding brought under favor of Secs. 2655 to 2657 (Lan. 3940 to 3942; B. 1536-148 to 1536-150) Rev. Stat. for the vacation of a street is a special proceeding, as distinguished from a civil action; hence, it is notappealable to the circuit court under Sec. 5226 Rev. Stat.
    [Proof of this decision and syllabus has been submitted to Judge Winch and corrected. — Ed.]
    Appeal from Cuyahoga common pleas court.
    J. A. Fenner, for plaintiffs.
    N. D. Baker, city solicitor, for defendant, city of Cleveland.
   WINCH, J.

In this ease we hold that a proceeding brought under favor of Secs. 2655 to 2657 (Lan. 3940 to 3942; B. 1536-148 to 1536-150) Rev. Stat., for the vacation of a street is a special proceeding, as distinguished from a, civil action, and so is not appealable to the circuit court under Sec. 5226 Rev. Stat.

So holding, the appeal is dismissed for want of jurisdiction.

Marvin and Metcalf, JJ., concur.


text:
    JUDGMENTS — PROCESS.
    [Hamilton (1st) Circuit Court,
    1908.]
    Swing, Giffen and Smith, JJ.
    American Audit Co. v. James A. Miller.
    Offer to Remit Excess of Judgment Above Sum Endorsed on Summons Properly Refused.
    Judgment for a greater amount than endorsed on the summons in compliance with See. 5034 Rev. Stat., cannot be permitted to stand; nor . can it be cured by offer to remit.
    Error to Hamilton common pleas court.
    Closs & Luebbert, for plaintiff in error.
    J. M. Riddell and C. F. Hornberger, for defendant in error.
   SWING, J.

We think that the court of common pleas had no power to render a judgment for $6,500, on June 13, 1907.

Section 5034 Rev. Stat., provides that, “when the action is for the recovery of money only, there shall be endorsed on the writ the amount to be stated in the precipe, for which, with interest, judgment will be taken if the defendant fail to answer, and if the defendant fail to appear, judgment shall not be rendered for a larger amount, and the costs.”

In this case the amount endorsed on the summons was $5,900. The court was- without jurisdiction to render judgment for an amount greater than was endorsed on the summons, Rosebrough v. Ansley, 35 Ohio St. 107; and this could not be cured by an offer to remit.

The action of the court in setting this judgment aside at a subsequent term was right.

Giffen and Smith, JJ., concur.