author: Hurd, J. Skeel, P. J.,

text:
    Jelm, Appellant, v. Jelm, Appellee.

      (No. 21547
    Decided February 27, 1950.)

      Messrs. Klein & Diehm and Mr. F. II. Gillen, for appellant.

      Mr. Carl M. Myers, for appellee.
   Hurd, J.

This cause is in this court on plaintiff’s appeal on questions of law from a judgment of the Common Pleas Court of Cuyahoga County. The parties will be referred to as plaintiff and defendant as they appeared therein.

The parties hereto were married on September 26, 1942. Three children were born of the marriage prior to the time a default decree of divorce was entered in favor of the plaintiff, and a fourth child was born on May 30, 1948, after entry of the divorce decree.

The defendant, on October 14,1948, filed his petition in the within action, after term, to vacate the decree >of divorce on the ground of fraud practiced by plaintiff iii obtaining such decree on the 6th day of March, 1948, during the J anuary term of court.

By journal entry dated April 12, 1949, the trial court vacated the decree of divorce on the ground of fraud, granted the defendant leave to file an answer tendered by him, which on its face stated a valid defense, and then as a part of the decree stayed and suspended the operation thereof pending the determination of proceedings on appeal upon the condition that during the proceedings on appeal the plaintiff should not live with one Jack Helbig with whom she had contracted a ceremonial marriage on October 5, 1948, and should not in the meantime hold herself out to the public as his wife.

We have carefully examined the record to determine whether the evidence was clear and convincing in support of the allegations of the petition to vacate on the ground of fraud, and have concluded that the evidence supports the findings of fact of the trial court by the requisite degree of proof.

• On September 6, 1947, plaintiff filed suit for divorce in Cuyahoga county. The sheriff of Cuyahoga county returned the summons endorsed, “the within defendant not found in my county.” Thereafter, on October 2, 1947, a praecipe with alias summons was issued to the sheriff of Summit county and on the 4th day of October, personal service was had on defendant in Akron, Summit county, Ohio, as appears by the sheriff’s return.

A written agreement had been entered into by the parties on August 2, 1947, and slightly modified on October 6, 1947, wherein it was stated in part that ‘ ‘ such differences have arisen between them that first party [plaintiff] is contemplating the bringing of a proceeding for divorce against second party [defendant].” By the terms of the agreement it was provided, among other things, that if a divorce should he granted, the property matters and custody of the children should be governed by the terms of the agreement which should become a part of the decree.

The record shows that on the night of October 18, 1947, plaintiff called her husband at Boston, Massachusetts, from Cleveland, Ohio, and advised him that she was pregnant with her fourth child. By a strange coincidence, the defendant learned on the same night of an occasion in 1946 when his wife, according to her own admissions set forth at length in the record, had been escorted to a train at the downtown Cleveland terminal for the purpose of a trip to Boston; and that she left the train at the East Cleveland station and met two of her husband’s friends, Robert Slusser and Jack Helbig, the latter of whom was a close friend of defendant and a member of their wedding party. Helbig then drove Slusser and the plaintiff in his father’s car to Boston. On the way the party stopped at a hotel where plaintiff and Helbig occupied the same bed and room while Slusser occupied an adjoining room. Having been informed of these facts, defendant drove by automobile all night from Boston to Cleveland. Upon his arrival he found his wife and Helbig in their apartment, his wife attired only in her night gown and Helbig just getting out of bed and putting on his clothes. No other persons were in the house at the time. Jelm then and there told his wife that under no circumstances would he agree to or permit her to obtain a divorce.

The record is clear that after the events of October 18 and 19, 1947, above related, the parties after some discussions agreed to live together, and thereafter cohabited as husband and wife and moved into a new home on Bryden road, Akron, Ohio, which was purchased by them for that purpose. They continued to cohabit as husband and wife for a period of between five and six months after the wife had secretly obtained an uncontested divorce decree in the Common Pleas Court of Cuyahoga County.

In relation to this entire period of time of cohabitation as husband and wife, the record shows that the wife deceived her husband in respect to the divorce because, as she testified, she “did not want him to know about it.” During the entire time from the filing of the petition for divorce in September 1947 to the last of August or first of September 1948, they mingled socially as husband and wife and continued to live in their home in Akron with their children.

The record also is clear that when the plaintiff obtained her uncontested decree of divorce she did not tell the trial judge that the parties had never separated and were still cohabiting as husband and wife, although she presented the separation agreement to the trial judge for approval. When asked about her failure to make this disclosure to the court she replied that it did not occur to her that “it was any of the court’s business.”

The record shows that the plaintiff wife had, by words and conduct, led the defendant husband to believe that she would not go ahead with the divorce case and that he, relying upon her conduct and representations, was beguiled and prevented from presenting his defense. By her own admission it is clear she knew that living together as husband and wife after the filing of the divorce petition would work an abandonment of the petition for divorce.

Upon the evidence in the record, we conclude that the defendant was induced by the fraudulent course of conduct and misrepresentations of his wife to believe that the proceedings which had been commenced in Cuyahoga county would not be carried on by her, and we conclude also that by the fraudulent course of conduct she concealed the fact that she had obtained the uncontested divorce decree, for a period of at least five months after the decree had been procured. We think it is a fair inference from the evidence shown in the record that the concealment was deliberate and premeditated for the purpose of preventing her .husband from learning of the default decree seasonably and in time to present his defense or to take action to vacate the decree. In our opinion the facts show a course of conduct amounting to extrinsic fraud and deceit practiced by the successful party in obtaining a decree of divorce, and that this fraud was not discovered until approximately five months after the entry of the decree.

On this appeal plaintiff assigns thirteen grounds of error. However, in our opinion, the issues here made present for our determination a single question of law which may be stated thus: May a divorce decree be vacated for fraud practiced by the prevailing .party in obtaining such decree, by petition after term, under Section 11631 et seq., General Code?

Prior to the constitutional amendment of 1912, reviewing courts of this state were without jurisdiction to review a decree of divorce as distinguished from a judgment relative to alimony and property matters. This doctrine of absolute finality applied to proceedings in error as well as to other modes of review. Thus up to the time of the constitutional amendments of 1912, divorce decrees, because of their sanctity and finality under numerous authoritative decisions, could not be reviewed, modified, or reversed upon appeal or •error and could not be vacated by an original bill in equity or by any statutory proceeding after term, no matter how gross the fraud practiced by the prevail- . ing party.

The leading case in support of this doctrine is Parish v. Parish (1859), 9 Ohio St., 534, 75 Am. Dec., 482, where the court refused to grant relief upon an original petition or bill in equity after term, although the divorce decree had been obtained by fraud.

The Parish case was followed by other cases. See Solomon v. Solomon (1904), 4 C. C. (N. S.), 321, 16 C. D., 307; Casto v. Casto (1907), 10 C. C. (N. S.), 265, 20 C. D., 93; Mulligan v. Mulligan (1910), 82 Ohio St., 426, 92 N. E., 1120; and Epstein v. Epstein (1909), 17 C. C. (N. S.), 29, 31 C. D., 695.

In Bay v. Bay (decided February 6, 1912), 85 Ohio St., 417, 98 N. E., 109, the doctrine of the Parish case was approved in respect to a divorce decree a vinculo, although this question was not directly at issue.

Thereafter, Section 6 of Article IV of the Ohio Constitution, as amended and adopted September 3, 1912, provided:

“The Courts of Appeals shall have * * * appellate jurisdiction * * * to review, affirm, modify, or reverse the judgments of the Courts of Common Pleas, Superior Courts and other courts of record within the district as may be provided by law * *

It is now well established that judgments and decrees rendered by Courts of Common Pleas in divorce cases may be reviewed on appeal on questions of law, including questions involving the weight of the evidence. See 14 Ohio Jurisprudence, 451, Divorce and Separation, Section 62 et seq.; Zonars v. Zonars (1920), 101 Ohio St., 518, 130 N. E., 943; Cox v. Cox (1922), 104 Ohio St., 611, 136 N. E., 823; Weeden v. Weeden (1927), 116 Ohio St., 524, 156 N. E., 908.

Thus, after the year 1912, the doctrine of the absolute finality of a decree of divorce, which had theretofore been imbedded in the law of Ohio as a matter of public policy, was changed, so that undoubtedly in respect to appeals on questions of law, a decree of divorce was placed upon precisely the same basis as any other judgment.

With this brief summation of the history of the law in respect of the finality of divorce decrees, we come now to the question of whether it is still the law of Ohio that absolute finality attaches to a decree of divorce in all cases except upon review on appeal, as contended by the plaintiff.

Plaintiff relies upon the authority of the Parish case, supra, contending that that case is still the law of Ohio. The syllabus of the Parish case is as follows :

“A decree from the bonds of matrimony, although obtained by fraud and false testimony, cannot be set aside on an original bill filed at a subsequent term.”

In that case an original bill in equity was filed after term, to which a demurrer was interposed, there being no question raised as to the jurisdiction of the court over the parties. The court sustained the demurrer on the eighth ground set out therein, as follows:

“That the decree of divorce is final and conclusive and cannot be reviewed and set aside.”

The opinion concludes with these words:

“We therefore feel compelled, though reluctantly, to hold that sound public policy in this class of eases, 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.

“Demurrer sustained and hill dismissed.”

The court predicated its decision on the ground that the then existing statute, which conferred exclusive jurisdiction in divorce cases on the Courts of Common Pleas, provided that the decree was final and exclusive and prevented an appeal from the decree of divorce.' The court stated that this constituted a principle of public policy as a matter of protection for innocent persons who might contract a new marriage without knowledge of the fraud.

The statute (41 Ohio Laws, 94, 2 Curwen, 991), which was in effect when the original proceedings in the Parish case were had, although repealed thereafter, provided that “no appeal shall be obtained from the decree [divorce], but the same shall be final and conclusive.”

Peck, J., at page 537 of the opinion in the Parish case, referring to 2 Curwen, 991, stated:

“This statutory provision is nothing more than a legislative recognition of the principle of public policy * * * 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.” (Emphasis ours.)

The court then cited the following cases: Bascom v. Bascom, 7 Ohio, pt. 2, 125; Langheny v. Langheny, 15 Ohio, 404; Tappan v. Tappan, 6 Ohio St., 64; Lucas v. Lucas, 69 Mass. (3 Gray), 136; Greene v. Greene, 68 Mass. (2 Gray), 361, 61 Am. Dec., 454.

In the Parish case the court relied upon the authority of and discussed with approval Greene v. Greene, supra, saying that it was ‘ in many respects analogous to the case at bar.” At that time, as in Ohio, there was not in Massachusetts any right of appeal or writ of error allowed by law in divorce cases and our Supreme Court quoted with approval the following language from the Greene case:

“ ‘We have seen no reliable authority opposed to the position above taken, that a decree of divorce a vinculo, when no appeal, review, or writ of error is allowed by law, or where the time for bringing such review or writ of error has expired, is final and conclusive upon the parties, and that an original proceeding to set it aside on the ground that it is fraudulently obtained upon false evidence, cannot be maintained.’ ”

The Ohio court then said, referring to Greene v. Greene: “This case seems to be decisive of the point, and is amply sustained by principle and authority.” (Emphasis. ours.)

The Supreme Court adhered strictly to the doctrine of Parish v. Parish, in all cases coming before the court for review up to the time of the amendment of Section 6, Article IV of the Constitution, in 1912. Courts of inferior jurisdiction seemed reluctant to follow the principle that even though fraud was committed by the prevailing party no relief could be granted the innocent party, and in some instances sought to distinguish on the facts. However, in Mulligan v. Mulligan (1908), 11 C. C. (N. S.), 585, 21 C. D., 89, an amended petition filed after term to set aside a divorce decree obtained by fraud and perjury was held good on demurrer by the Circuit Court for Mercer. county. Here the issue was squarely met. In an opinion containing an elaborate and exhaustive review of authorities, Hurin, J., speaking for the court, said at page 596:

“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 Greene v. Greene 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.”

The Circuit Court then pointed out that “even in Massachusetts the supposed precedents of Greene v. Greene and Lucas v. Lucas [69 Mass., 136],” relied upon in Ohio as decisive in Parish v. Parish, had been “completely departed from or explained away,” and cited Carley v. Carley, 73 Mass. (7 Gray), 545 (decree vacated for fraud within term), and Edson v. Edson, 108 Mass., 590, 11 Am. Rep., 393, where the Massachusetts court held that the court had jurisdiction to vacate a decree of divorce fraudently obtained at a former term, by petition after term, upon discovery of the fraud.

Whereupon, the Circuit Court declined to follow the Parish case and earlier Ohio decisions, holding that courts inherently have the right to protect themselves and the public from fraud and perjury.

The Supreme Court in Mulligan v. Mulligan, supra, made short shrift of this decision and without opinion made the following brief entry:

“Judgment reversed and judgment of the Court of Common Pleas affirmed on authority of Parish v. Parish, 9 Ohio St., 534.”

In Bay v. Bay, supra, the court held, in substance, that where a husband by false testimony obtained a decree of divorce for the wife’s aggression and the decree barred her of alimony, dower, and other interests in the husband’s property, the decree dissolving the marriage relation was conclusive but the decree could thereafter be opened up so far as it related to the wife’s interests in her husband’s property. While this decision was entered in 1912, it was before the effective date of the amendment of Section 6, Article IY of the Constitution.

In the case of Nauman v. Nauman (1897), 4 C. C. (N. S.), 298, 16 C. D., 37, the Circuit Court for this county held, as shown by the second paragraph of the syllabus :

“2. A court is not authorized to reopen a divorce case upon a motion filed two days after the decree was rendered, where it appears that on the day the motion was filed one of the parties without knowledge of the filing remarried.”

In the case of Sapp v. Sapp (1909), 14 C. C. (N. S.), 269, 24 C. D., 652, the Circuit Court for Knox county held that the rendition of a decree of divorce fixes the status of the parties eo instanti and the marital relation thus severed can be repaired only by the consent of the parties and their remarriage.

Therefore, there can be no doubt that prior to the effective date of the Constitutional amendment of 1912, absolute finality was accorded to decrees of divorce under the rule of the Parish case by virtue of the then existing statute and public policy.

"What is the state of the law since the amendment of Section 6, Article IV of the Constitution, in 1912? May a decree of divorce be set aside either within term for good cause shown or at a subsequent term of court when the decree was obtained by fraud?

In 157 A. L. R., 44, Section 6, the author asserts that today the Parish case can be considered definitely overruled. At pages 44 and 45 we find the following statement:

“About ten years later [after the Mulligan case (1910), 82 Ohio St., 426], and after the Constitution had been amended, the Court of Appeals took the position that the rule of the Parish case had been overruled by later decisions of the Supreme Court and declared that divorce decrees stood upon the same basis as any other judgment and were subject to the same modes of relief recognized in other cases. In a later case this rule was especially applied to a petition to vacate a divorce decree rendered by default, so that today the Parish case can be considered as definitely overruled.” Citing Zonars v. Zonars, supra; Cox v. Cox, supra; Wells v. Wells (1922), 105 Ohio St., 471, 138 N. E., 71; Love v. Love (1922), 17 Ohio App., 228; Beck v. Beck (1933), 48 Ohio App., 105, 192 N. E., 791; Knapman v. Ford (1940), 33 Ohio Law Abs., 477, 19 Ohio Opinions, 552.

The first breach in the doctrine of absolute finality of divorce decrees in respect of their vacation within term came in the case of Love v. Love, supra, decided by the Court of Appeals for Darke county, where it was held that “a decree granting a divorce may, in the court’s discretion, for good cause, be opened up and vacated during the term wherein the decree was rendered. ’ ’

At page 229 the court said:

“Under many of the former decisions of the Supreme Court there was a certain finality accorded to a decree for divorce. This finality in the first instance was based upon a statute. Later on the statute was repealed, but the Supreme Court still accorded finality to the decree of divorce upon the grounds of public policy. (Parish v. Parish, 9 Ohio St., 534.) This ruling has been recognized as late as the case of Bay v. Bay, supra.

“The case of Zonars v. Zonars, 101 Ohio St., 518, we think constitutes a new departure. ■ The Zonars case is not reported in full, but the effect of it is necessarily to destroy the finality of the judgment of divorce as established in the case of Parish v. Parish. Since the Zonars case, we think it necessarily follows that a decree for divorce stands upon the same basis as any other judgment of the Court of Common Pleas and is subject to those modes of relief which have been recognised in other cases against judgments entered in that court.” (Emphasis supplied.)

The Supreme Court overruled a motion to certify the record in that case on April 17, 1922.

In 1923 the Court of Appeals of the Second Appellate District (Darke county) decided the case of Potts v. Potts, 21 Ohio Law Rep., 326, 1 Ohio Law Abs., 798, wherein the court again held that a trial court had jurisdiction to vacate or modify a divorce decree on motion within term for fraud in the procurement of the decree, and held further that remarriage was not a bar to such action on the part of the court. In the course of an opinion by Allread, J., we find the following statement:

“Counsel for plaintiff in error cite a number of cases which were decided under the statutes existing prior to the constitutional amendments of 1912, and some decisions of the lower courts rendered after the Constitution of 1912 became effective. The Supreme Court, however, in the case of Zonars v. Zonars, 101 Ohio St., 518, 519, held that the Court of Appeals had jurisdiction to review the judgment in divorce cases and to vacate the judgment. The Zonars case was followed by the case of Wells v. Wells, 105 Ohio St., 471.

“The Court of Appeals of this district in the case of Dora Love v. Eli P. Love, an unreported case from Darke county, held that the trial court in a divorce case had jurisdiction upon motion filed during the judgment term to vacate and set aside a decree of divorce in the reasonable exercise of its discretion.

“The Love case was presented to the Supreme Court on motion for writ of certiorari and the writ was refused. This would re-enforce the strength of the authority of the Darke county case.”

Later, in 1927, the case of Ready v. Ready, 25 Ohio App., 432, 158 N. E., 493, was decided by the Court of Appeals of this district, wherein it was sought to reverse a judgment of the Court of Common Pleas for error in denying a motion of the wife, made during term, to vacate a decree of divorce granted the husband on the ground of fraud and irregularity in the procurement of the decree. The court, through Sullivan, J., asserted at page 434:

“A primary legal question in the case is whether a divorce decree can be set aside for irregularity and fraud by plaintiff, eyen though subsequent to the divorce a remarriage takes place on the part of the party plaintiff, who was granted the decree. The question involves the contrast in judicial power with respect to cases of this character existing prior to the Constitution of 1912 and those arising subsequent to the adoption of its provisions.”

After a discussion of decisions prior and subsequent to the Constitution of 1912, contrasting judicial power, the court reversed the judgment of the trial court and held that where the plaintiff had perpetrated a fraud in the procurement of a divorce and had remarried in the midst of error proceedings, such subsequent remarriage was not a bar to a vacation of a divorce decree. A motion to certify the record in the case was overruled. This series of Court of Appeals decisions interpreting the effect of the constitutional amendments of 1912 and discussing the effect of Supreme Court rulings in respect thereof upheld the jurisdiction of the trial court to vacate decrees of divorce within term. These rulings are in direct contrast with the Circuit Court rulings, rendered prior to 1912, in such cases as Sapp v. Sapp and Nauman v. Nauman, supra.

The litigants in the case of Beck v. Beck, supra, were twice before the court (45 Ohio App., 507, and 48 Ohio App., 105). While there were many complications, the facts germane to the issue here may be summarized briefly :

Velma Beck was plaintiff and commenced her action for divorce and alimony in the Court of Common Pleas of Coshocton County on September 28, 1931. In the January 1932 term, a divorce was granted and alimony allowed. In the April term, 1932, Edgar Beck, defendant, commenced an independent action in Coshocton county to vacate and set aside the judgment for fraud and for want of jurisdiction and prayed for leave to file his answer and make a defense. The Common Pleas Court of Coshocton County dismissed his petition. The Court of Appeals, on May 13, 1933, reversed the judgment of dismissal, vacated the judgment and remanded the cause with instructions to permit defendant to file his answer. (45 Ohio App., 507.) The court found that the affidavit for constructive service having been sworn to before a notary public, who was attorney of record for defendant, was defective and, therefore, the court was without jurisdiction. The court also found that the charge of fraud was not sustained by the evidence.

While the facts of the BecJc case are not directly analogous to the facts of the instant case, that case being grounded on want of jurisdiction because of the defectively executed affidavit and this case being grounded on fraud, yet the question .of.the, jurisdiction! of the court tó vacate a decree of divorce after term was present in that case. Therefore the reasoning-contained in the opinion of Sherick, J., with the concurrence of Lemert and Montgomery, JJ., is very cogent. After commenting on the rule of public policy settled in the Parish case, the court, quoting- that part of Section 6, Article IY of the Constitution, as amended in 1912, said:

“The people did not see fit to except from that mandate a judgment of divorce, although they were well acquainted with the theory of public policy and the previous sanctity of divorce decrees. We do not have the temerity necessary to write such an exception into the Constitution.

“In Zonars v. Zonars, 101 Ohio.St., 518, 130 N. E., 943, the court considered the finality of a divorce decree in so far as the right to have it reviewed in a proceeding in error was concerned, and it was held that it might lie reviewed. A decree of divorce, its finality and sanctity, was placed upon the same basis as any other judgment. In other words the court recognized that the old theory of public policy could not endure as against the people’s subsequent constitutional expression. The court, in Wells, Jr., v. Wells, 105 Ohio St., 471, 138 N. E., 71, again disregards the finality of a decree of divorce.

i Í * * *

“Undoubtedly the court in the Zonars case had in mind Section 11634, General Code, which has to do with a motion to vacate a judgment within term. Section 11635, General Code, provides the procedure in other eases, that is by petition to vacate after term within the time limit established by Section 11640, General Code. The petition to vacate in the present instance is grounded upon Section 11635, that is upon fraud, and upon Section 11632, General Code, which deals with the opening of a judgment obtained by service of publication. This court reversed the judgment upon the theory that the Coshocton county court had no jurisdiction of the person of the plaintiff in error. We recognize that authorities are listed under the last named section, which hold that this section does not apply to divorce decrees. The statutes do not so provide. Examination of these cases — all decided before 1912 — discloses that they predicate their holdings on the theory of public policy.

“These statutes are general statutes, none of which provides an exception in the matter of divorce decrees. We are unable to see any distinction in principle between a right of review of a divorce decree in an error proceeding, or a motion to vacate such a judgment within term, and a petition to vacate after term. Ail were in the past considered not to apply to divorce decrees by virtue of public policy; and not upon statutory inhibition. If the constitutional change supersedes the rule of public policy, as it does, there surely is no sound reason to break from the old rule in two instances and cleave to the rule on a petition to vacate after term.” (Emphasis added.)

A motion to certify the record in that case was overruled by the Supreme Court on June 13, 1934.

The Supreme Court has held in many cases that the constitutional amendment, in 1912, of Section 6, Article IV, is not subject to enlargement or limitation by legislative action. See Cincinnati Polyclinic v. Balch, 92 Ohio St., 415, 111 N. E., 159; Zonars v. Zonars, supra; Chandler & Taylor Co. v. Southern Pacific Co., 104 Ohio St., 188, 135 N. E., 620; Cox v. Cox, supra; and Weeden v. Weeden, supra.

A very important pronouncement bearing upon the jurisdiction of trial courts to vacate or modify a descree ■ of" divorce--under ■ the statutes at a subsequent term is contained in the case of Weeden v. Weeden, supra. That was an error proceeding in a divorce case where the court considered the question of whether the Courts of Appeals of this state had jurisdiction to reverse divorce decrees on the weight of the evidence. In that case it was argued that neither the Constitution nor judicial decisions provided procedure for reviewing a divorce case, and that the divorce .chapter contained no provision for error proceedings and no provision for filing a motion for new trial. It was further urged that Section 11576, General Code, providing for the granting of a new trial does not relate to divorce decrees.

The Supreme Court rejected this argument as un.sound. Allen, J., speaking for a full bench, after discussing the cases of Cox v. Cox, supra, and Zonars v. Zonars, supra, said:

“In the Zonars case this court manifestly held that the constitutional jurisdiction of the Courts of Appeals in divorce cases compelled the application of Section 11576, General Code, to divorce judgments and required the consideration by the Court of Appeals of the question of the weight of the evidence.

i i # * *

“In view of the express provision of the Constitution, Article IV, Section 6, which makes no exception in classes of judgments, and makes no classification of errors of law for which judgments may he reversed, and bearing in mind the decisions cited above, we are constrained to overrule the contention of the plaintiff in error and to affirm the judgment of the Court of Appeals. ”

At the time of that decision it was provided by Section 11578, General Code, that a motion for new trial was required to he made within three days after the verdict or decision was rendered, unless a party was unavoidably prevented from filing it within such time.

It has been held under these sections that a party who has been unavoidably prevented from filing a motion for new trial may file such motion after three days have elapsed even though the clerk has entered judgment on the verdict. See Independent Coal Co. v. Quirk, 16 C. C. (N. S.), 546, 26 C. D., 471, affirmed without opinion, 80 Ohio St., 746, 89 N. E., 1120.

Section 11580, General Code, then in effect, provided:

“When, with reasonable diligence, the grounds for a new trial could not he discovered before, but are discovered after the term at which the verdict, report, or decision was rendered or made, the application may be by petition, filed not later than the second term after the discovery, nor more than one year after final judgment was rendered, on which a summons must issue, be returnable and served, or publication made, as in other cases.”

Effective October 11,1945, these sections of the General Code were amended and provided, among other things, that a motion for a new trial must be made ten ■ days after the judgment of decree has been approved by the court in writing and filed with the clerk, and . that if a party was unavoidably prevented from filing a motion within such time the court might, in the interest of justice, extend such time. (Section 11578, General Code.)

New Section 1158Ó, General Code, provides that such application may be made after term under the same conditions set forth in the predecessor statute and that the application may be by petition filed not later than the second term after the discovery of the grounds for n'ew trial, or more than one year after the final judgment or decree was rendered.

It should be noted here that under those sections applicable at the time the instant case was decided, if a judgment is journalized within the last few days or..even on the last day of the term, a party under the.statute must perforce file his application for new trial after the term at which it was rendered. While under the new amendment (Section 11576-1, General Code), a motion for a new trial is not necessary as a prerequisite to obtain appellate review on the weight of the evidence, such a motion may be filed and many situations arise where a motion for new trial is deemed necessary.

It has been held that a petition to vacate a judgment under Section 11631 ei seq., General Code, is not of itself a civil or an independent proceeding in an action to affect a judgment rendered therein at a former term of the same court, but is in the nature of and professedly is an application for a new trial. Taylor, Assignee, v. Fitch, 12 Ohio St., 169; Bever v. Beardmore, 40 Ohio St., 70, 78; Beck v. Beck, supra; Shuck, Exrx., v. McDonald, 58 Ohio App., 394, 16 N. E. (2d), 619; Terry v. Claypool, 77 Ohio App., 77, 85, 65 N. E. (2d), 883; and Shedenhelm v. Myers, 77 Ohio App., 385, 68 N. E. (2d), 331.

Thus there is no distinction in principle between a motion for a new trial after term for good cause shown, on applicable statutory grounds, and a proceeding to vacate or modify a judgment or decree after term for good cause shown, on applicable statutory grounds, under Section 11631 et seq., General Code. If then, as decided in Weeden v. Weeden, supra, the constitutional jurisdiction of the Court of Appeals compelled the application of Section 11576 et seq., General Code, to divorce judgments, no sound reason now appears for not applying Section 11631 et seq., General Code, to divorce decrees, especially when it is considered that a petition to vacate a judgment under such sections is a special proceeding in the nature of an application for a new trial. Stated conversely, upon the basis of the cited and quoted authorities, by analogy and reason, it would appear that a divorce decree may be vacated, modified, or reviewed during or after term, upon the same basis as any other judgment. In relation to statutes providing for relief after judgment the arbitrary bar between the last day of the old term and the first day of the new term no longer exists where, within statutory limitations and for good cause, a good case is made for such relief.

That divorce decrees may be set aside upon a motion for a new trial is' recognized by Section 12223-7, General Code (amended October 11, 1945), which relates to the time of filing appeals, in the following ■ language:

“After the journal entry of the final order, judgment or decree, has been approved by the court in writing and filed with the clerk for journalization, * * ■* the period of time within which the appeal shall be perfected, unless otherwise provided by law, is as follows: -

“1. In appeals to * * * Courts of Appeals * * * within twenty (20) days. •

“Provided, that, when a motion for a new trial is filed by either party within ten days after a journal entry of a final order, judgment or decree has been approved by the court in writing and filed with the clerk for journalization, then the time of perfecting the appeal shall not begin to run until the entry of the order overruling or sustaining the motion for new trial. • * *”

Section 11575, General Code, as amended October 11,1945, defines a new trial in the following language: “A new trial is a re-examination, in the same court, of the issues, after, a final order, judgment or decree by the court.” (Emphasis added.)

As hereinbefore observed, under Section 11576, General Code, a motion for new trial provides a mode of procedure for securing relief after judgment. Section 11631 et seq., General Code, being in the chapter entitled “Other Relief After Judgment,” also provide a mode of procedure for relief after judgment, the clear intent and purpose of which is to secure the same result as a motion for new trial if the conditions therein specified exist and the proceedings are instituted within the time limited by Section 11640, General Code. As above noted, divorce decrees and judgments are now subject to vacation, revision, and review upon motions to vacate filed within term, upon motions for new trial under Section 11576, General Code, and upon review by Courts of Appeals.

Consistent with the foregoing the conclusion seems inescapable that Section 11631 et seq. are applicable to decrees of divorce as well as to all other classes of judgments.

The principle of public policy that divorce decrees are final and conclusive being no longer the law of Ohio, the basis of the doctrine of the Parish case is completely destroyed. This conclusion is in full harmony with the Supreme Court decisions and Courts of Appeals decisions rendered subsequent to the constitutional amendments of 1912.

In consideration of all the foregoing we conclude that under the present state of the law in Ohio a divorce decree may be vacated for fraud practiced by the prevailing party in obtaining a decree of divorce, by petition after term, under the provisions of Section 11631 et seq., General Code.

,The conclusion herein reached is in complete harmony with the great weight of authority in other jurisdictions throughout the United States, particularly where there is an issue of extrinsic or extraneous fraud as distinguished from intrinsic fraud.

A good example may be found in a review of the Massachusetts decisions. We have hereinbefore alluded to the cases of Carley v. Carley and Edson v. Edson, where the Massachusetts Supreme Court departed from its rule of public policy laid down in Greene v. Greene a*nd Lucas v. Lucas, supra, and which was held to be decisive of the issue in Parish v. Parish, supra. While it is true that in the case of Zeitlin v. Zeitlin, 202 Mass., 205, 88 N. E., 762, 23 L. R. A. (N. S.), 569, 132 Am. Rep., 490, it was held that a decree of divorce which had become absolute could not be revoked for perjury found to have been committed at thé original trial, on the other hand, in the later case of Sampson v. Sampson (1916), 223 Mass., 451, 112 N. E., 84, it was held that a decree absolute of divorce could be revoked for fraud of the husband in leading his wife to believe that he had abandoned the suit and thus to refrain from contesting. This was held to be an extraneous act of fraud as to a subject upon which the courts had not already passed. The facts of that case are closely analogous to the facts in the case at bar. Here we have a case of extraneous fraud practiced by the wife because the record shows fraudulent inducements by a course of conduct and representations as well as concealment of the wrong done, for a period of months after the default decree was fraudulently obtained.

The first paragraph of the syllabus of the Sampson case is as follows:

“A petition to vacate a decree of divorce that was entered nisi and afterwards became absolute, which alleges that the petitioner was induced by the fraudulent conduct and representations of her husband not to contest the libel, to which she had a complete defense, being fraudulently induced by him to believe that the proceedings had been discontinued, and that she did not know of the granting of the decree until after it had been made absolute, states sufficient ground for relief, and an allegation that the petitioner did not receive notice of the libel for divorce, is not necessary.”

An examination of the Supreme Court cases of Massachusetts since Sampson v. Sampson, supra, discloses no decisions modifying or overruling the principles of law therein enunciated.

In other jurisdictions throughout the United States the rule is the same. ' The doctrine applies particularly to default judgments for divorce. See 157 A. L. R., 18, “Divorce,” Section 2, where the following statement, supported by numerous citations, is made:

“An application of these general principles to default judgments for divorce leads to the rule, broadly formulated and universally recognized, that such judgments may be set aside or vacated, either upon motion or in an original proceeding, whenever they were rendered under such circumstances as would satisfy the court that they were not intended to be authorized by it. The existence of this power of the court to grant relief in proper cases from a default judgment for divorce as surviving the term at which the judgment was rendered has been recognized, in express language or by implication, in nearly every jurisdiction.

{( # # &

“Since in the great majority of cases the court’s power to grant relief has been invoked because of fraud perpetrated on the defendant spouse or on the court, the statements of the courts in regard to the existence of the power very frequently refer to their power to set aside a default decree of divorce because of fraud.

“ * * * Frequently the courts give expression to their authority to vacate a default judgment for divorce by stating that they have the same power over divorce judgments as they have over other judgments, thus expressly refusing to use any other than the general rule or principles governing judgments or decrees generally. ’ ’

Another proposition requires some discussion before we conclude this opinion.

Adverting once again to the Parish case, it is clear that one reason influencing the decision on the ground of public policy was the fear therein expressed that once the matrimonial tie had been sundered, the parties would be enabled to contract new matrimonial relations with other and innocent persons. On that ground the court held that a divorce once granted should never be reopened; and that to do so would endanger “the peace and good order of society, and 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. ’ ’ The foregoing statement has no application to the facts in the case at bar because Helbig, with whom plaintiff herein contracted a matrimonial alliance secretly in New York state, was obviously not an innocent party but a third party interloper, who, on the record before us, was largely responsible for the present difficulties of the parties. The evidence here tends to show that the very purpose of securing the divorce secretly and fraudulently was to enable the plaintiff to contract the new matrimonial alliance. Certainly on the record there is no advantage taken of another and innocent person.

That the plaintiff was not innocent about contracting the new matrimonial alliance is also indicated in the record. Plaintiff testified that on September 27, 1948, her husband had informed her of his intention to attempt to set aside the divorce decree; that she had communicated this information to her attorney on the last day of September; and that he suggested she come to his office and talk the matter over. As indicating her state of mind and attitude, she testified respecting the conference with her attorney:

“And I said, ‘there is no sense running around with our tongues hanging out. Nothing has happened yet and I don’t think it is worth the time to come down and talk it over until something happens.’ ”

In view of these facts her secret marriage to her paramour in New York state five days later on October 5, 1948, is not a bar to vacation of the divorce decree obtained by fraud.

: .“The power of the court to set aside a judgment of divorce has been held, by the overwhelming majority of authority, not to be ended by the fact that the party who obtained the judgment has remarried.” 157 A. L. R., 46 et seq., citing many cases from many -jurisdictions, including Potts v. Potts, supra. See, also, 14 Ohio Jurisprudence, 448, Divorce and Separation, Section 59; Ready v. Ready, supra, 17 American Jurisprudence, 377, Section 461; Croyle v. Croyle (1944), 184 Md., 126, 40 A. (2d), 374.

While in the Ready case hereinabove cited and quoted the marriage occurred while the appeal was pending, in the instant case it occurred when it was obvious that an effort would be made to invalidate the decree. In either case the principle is the same. Neither party was innocent, nor was there an innocent third party involved.

Another contention argued by. plaintiff is that whatever fraud may have been committed was intrinsic rather than extrinsic fraud. With this contention we do not agree. We think the record shows clear and convincing evidence of extrinsic fraud, and we think it is unnecessary to enter into any extended discussion of this subject. ■

The words of Chief Justice Taft in Toledo Scale Co. v. Computing Scale Co., 261 U. S., 399, 67 L. Ed., 719, 43 S. Ct.,- 458, have direct application to this situation, where he said:

“We do not find ourselves obliged to enter upon a consideration of the sometimes nice distinctions made between intrinsic and extrinsic frauds in the application of the rule, because in any case to justify setting aside a decree for fraud, whether extrinsic or intrinsic, it must appear that the fraud charged really prevented the party complaining from, making a full and fair defense.”

Touching the question of public policy in relation to divorce we should recognize the fact that conditions have changed materially since 1858. when the Parish case was decided, almost a hundred years ago.

Marshall and May in their volume entitled “The Divorce Court,” published in 1933, state in substance that commencing some time before 1930 there has been annually an army of over half a million men and women marching through the divorce courts of America. In Cuyahoga county alone there was an increase in filings for divorce from 4045 cases in 1933 to an all time high of 9107 in 1946, all of which is a matter of public record. There is nothing that the courts can do to stem the tide of this rapid increase in the divorce rate. That is a social problem. But certainly the courts can and should be alert to detect and prevent fraud in the securing of divorce decrees wherever possible. Where clear and convincing evidence is adduced, showing that a decree of divorce has been obtained by the practice of fraud on the part of the prevailing party, such a decree should not acquire greater sanctity than a decree in any other ease, simply because the parties have been successful in concealing the fraud until after the end of the term. To approve such a principle is to place the stamp of approval on fraud successfully practiced in a divorce case, while no other type of fraudulently obtained decree attains such sanctity. The fact that the prevailing party was successful in concealing the fact of the uncontested decree until after the close of the court term should not make the question of relief from such fraud impossible of attainment in a proper proceeding.

In view of the present state of the law of Ohio, which recognizes that the state is in effect a third party to every marriage and wherein is recognized the proposition that the family is a primary unit of the state, divorce cases should stand on a parity with all other cases.

. It is our conclusion that the Common Pleas Court had jurisdiction to entertain this petition to vacate the decree which the trial court found under the evidence had been fraudulently obtained, and in view of the applicable law we do not find error prejudicial to the rights of the plaintiff, who will only be required to submit her case for adjudication on the issues made by the pleadings.

The judgment of the Common Pleas Court should be, and is, affirmed.

Judgment affirmed.

McNamee, J., concurs.

Skeel, P. J.,

dissenting. This cause comes to this court on appeal on questions of. law from an order of the Common Pleas Court granting the defendant’s motion to vacate a decree of divorce entered at a previous term and returning the case to the active list for trial. The parties to the action were married September 26, 1942, and four children have been born of the marriage, the last child having been born on May 30, 1948.

The plaintiff filed her petition for divorce on September 6,1947. Prior to filing her petition for divorce, the parties had agreed to a property settlement and separation agreement which was signed on August 2, 1947. The summons for divorce was served on the defendant on October 4, 1947, in Akron, Ohio, the defendant having gone to the courthouse in Cuyahoga county for the purpose of being served. However, return day had passed so that service could not then be made under the original praecipe. On October 6, 1947, the defendant procured the plaintiff’s signature to an amended property settlement and separation agreement which he himself had rewritten and which provided in part that the defendant was to pay or return to plaintiff $5,000 of her money which had been used by the parties to buy securities and $600 which plaintiff had advanced for the purchase of an automobile and, further, to pay the plaintiff $100 per month as support for the children. The plaintiff was to have all the furniture and the defendant his personal effects and the automobile. . -

After the service of summons, the terms of the agreement as to division of property were carried out, and the defendant since that time has paid $100 per month for the support of the children.

The defendant, in contending that fraud was practiced on him in procuring the divorce, relies strongly on an occasion when he was first told of the fact that plaintiff was pregnant with the fourth child, in a long-distance telephone conversation on October 18, 1947. At that time the defendant was in Boston, Massachusetts. He also claims it was about that time that he first learned of an occasion in 1946 of plaintiff’s infidelity with one Helbig, whereupon the defendant drove to Cleveland, arriving the morning of October 19, 1947, and found Helbig in the home of the parties, in the act of dressing, and the plaintiff still attired in her night dress. The defendant testified that on this occasion he told plaintiff he would never permit her to have a divorce.

The defendant in his brief refers again and again to the October 19, 1947, incident, and the evidence of infidelity occurring on the Boston trip in 1946, yet the record does not show that he evidenced any particular concern about it at that time. There is no dispute in the record that the parties lived together as man and wife after the defendant was served with summons and after the occasion just described as well as after the divorce was heard and granted on March 6, 1948. Prior to the trial of the case, the defendant, who was out of the city a great deal of the time during that period, received a letter about December 10, 1947, while in Boston, from the plaintiff’s lawyer, advising defendant that he had not filed an answer and that the case could be tried at any time. Upon receipt of such letter the defendant called the plaintiff and in an attempted explanation plaintiff told him the letter was a mistake.

The defendant’s testimony tends to establish that plaintiff on a number of occasions promised not to go forward with the ease- although the defendant does not say that the plaintiff agreed to dismiss the action.

It is the plaintiff’s contention that there was never any question that the divorce case would be heard,, but that they both agreed to conduct themselves in such a way as to keep their respective families and friends from finding out about it. They, therefore, continued to cohabit as man and wife. This version of the understanding of the parties, in part at least, is supported by the defendant’s testimony which, after describing his hurried return from Boston on October 19, 1947, above referred to, was as follows:

“Q. What did you say to your wife, if anything? * * * A. I don’t think I said much of anything at that minute.

“Q. Was there anything said about the case then? A. After Mr. Helbig left, she was merely my wife and I talked at that point and I told her under no circumstances would I give her a divorce.

“Q. Had you had your summons at that time? A. Yes, sir.

“Q. Then what did you say to her? A. She maintained that she wanted the divorce.

“Q. What did she say beyond that? A. She said she still wanted the divorce and I said it was out of the question, in view of her condition,- and the end of the conversation was that she agreed unconditionally to take no action on the divorce until after the baby was born and then reconsider it.

“Q. What did she say! The court indicated you can only tell what she said. A. She said, ‘All right, I won’t get the divorce until after the baby is born and we will talk about it then. ’

“Q. Is that one of the things you relied upon? A. It is.”

As above indicated, it is to be noted that the defendant did not express any very great concern over the conditions he found on that occasion. In fact there is evidence in the record which tends to establish that he and his wife had dinner with Helbig at plaintiff’s mother’s home in Akron that evening.

The evidence is not greatly in dispute that the defendant did not actually know the case had been presented to the court, a decree of divorce entered, and a journal entry filed (all of which took place on March 6, 1948, as above indicated) until just before the first of September 1948* There was then a complete separation of the parties and the plaintiff married Helbig in New York City on October 5, 1948.

This motion to vacate the decree and judgment of divorce was filed October 12,1948.

The record presented on this motion clearly indicates that defendant is entitled to little consideration. His conduct has been such that if his interests were the sole consideration of the court the motion should have been overruled.

The plaintiff in presenting her evidence at least attempted to give an accurate statement of the facts, without regard to the extent of the damage that many of the admissions had upon her defense to the motion to vacate. Rut as indicated above, the evidence is undisputed that the parties cohabited together as husband and wife in exactly the same way as they had done prior to the commencement of the case. Whatever grounds the plaintiff had that would justify a divorce decree in her favor because of the aggression of the defendant were condoned by such continued conduct. No secret intent, even if agreed to between the parties, could destroy the legal effect of cohabitation as man and wife during the pendency of the divorce action, and if this fact had been brought to the attention of the court at the time of trial the court would have denied the prayer of the plaintiff. 'The evidence establishes that when plaintiff presented her case to the court, in the absence of the defendant who was out of town at that time, nothing was said that would even suggest that the -parties had not been separated as the result of the defendant’s alleged wrongful conduct, and in fact a separation agreement was presented to the court which indicated that a separation had taken place.

We are presented therefore with two questions: (1) Does the court have power to vacate a judgment of divorce after term on the ground of fraud practiced on the court by the successful party? (2) Does continued cohabitation of the parties as man and wife, after filing a petition for divorce, which fact is not disclosed to the court upon trial, constitute such a fraud upon the court as to require it to vacate such decree when such facts are brought to its attention after term?

The plaintiff presents other claims of error but they are not supported by the record.

The Supreme Court of Ohio in.the case of Parish v. Parish, 9 Ohio St., 534, 75 Am. Dec., 482, held:

“A decree from the bonds of matrimony, although obtained by fraud and false testimony, cannot be set aside on an original bill filed at a subsequent term.”

That case has had a stormy career a,nd on a number of occasions has been somewhat modified, but it has never been overruled so far as it prohibits the vacating of that part of the divorce decree which dissolves the marital relations between the parties, after term, otherwise than by the regular rules of appellate procedure.

In 14 Ohio Jurisprudence, 444, Section 59, the author, in considering the power of a court to vacate a decree of divorce after term, said:

“At subsequent term. — It is well established in Ohio, as a general rule, subject to exceptions in certain cases hereinafter noted, that a decree granting a divorce, although obtained by fraud and false testimony relating either to the jurisdiction of the trial court or to the merits of the case, cannot be set aside on an original petition filed at a subsequent term of the court. And this is true even though jurisdiction of the defendant in the divorce action was obtained by means of publication only, the provisions of Section 11632, General Code, relating to the opening of judgments and orders obtained without service other than by publication, being inapplicable to such cases. This rule is based upon ‘the principle of public policy * * * 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, it is said, ‘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.’ It has been applied in a proceeding to vacate a decree upon the ground that it had been subsequently discovered that the defendant was insane during the pendency and trial of the action and also at the time of the commission of the acts for which the divorce was granted. The rule is limited, however, to adjudications affecting the marriage status, and does not extend to such portions of a decree, in such ease, as deals with the property rights of the parties. So, when the court rendering a decree adjudicating the rights of the parties with respect to alimony or other property interests does not have jurisdiction of the person of the defendant, he or she may thereafter have such decree opened up, insofar as it relates to the defendant’s interest in the plaintiff’s property, and be let in to defend. It is also well established, as a further modification of or exception to the general rule that a divorce decree will not be opened up or vacated at a subsequent term, that where the jurisdiction of the court in a particular case is obtained by means of fraud of such nature as to cause the record to speak falsely, a judgment or decree rendered therein may be set aside for such cause at a subsequent term * * * Also, where a divorce decree is invalid or voidable for fraud, and the reasons for such invalidity are apparent on the face of the record, it will be vacated. A further exception to the general rule against the opening up of a divorce decree at a subsequent term exists in the case where it appears that the court did not have jurisdiction over the defendant, by reason of the insufficiency of the service or publication of process. In such case the decree will be set aside, although the plaintiff may have married again in the meantime. But a divorce decree obtained upon service of process by publication only will not be set aside on account of the failure to attach a copy of the petition to the notice mailed to the defendant, where the defendant fails to satisfy the court that he had no actual notice of the proceeding, under the provisions of Section 11632, General Code. The fact that the party on whose application a decree of divorce has been granted marries again during the pendency of proceedings in error to reverse the judgment awarding such decree will not constitute a bar, on the ground of public policy, to the vacation of such decree upon the reversal of such judgment; at least, where such vacation is asked upon the ground that the decree was procured by fraud.”

The case of Mulligan v. Mulligan, 11 C. C. (N. S.), 585, 21 C. D., 89, was tried in the Circuit Court in December 1908. The court criticized the social wisdom of the Parish case, supra, and gave a number of circumstances where the law of the case would work unusual hardship to established family relations. The court conceded, however, that there is “much to be said on the other side” of the problem, and at page 592 said:

“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 # * *

The facts alleged in the Mulligan case, supra, presented a case of fraud practiced on the court and the defendant, equally as flagrant as the facts in the Parish case. The defendant, in the motion filed after term to vacate a decree of divorce, charged that the plaintiff husband was, not a resident of Ohio or of Mercer county, where the action was filed, for the length of time required by statute, and that the plaintiff’s affidavit for constructive service was untrue because he knew at all times where the defendant could be found. Likewise, it was alleged that the evidence upon, which the decree was entered was perjured. After the decree was entered the plaintiff remarried. The Common Pleas Court sustained a demurrer filed by the plaintiff to defendant’s motion to vacate, which motion was based on grounds of fraud under the provisions of Sections 5354 and 5355, Revised Statutes (now Sections 11631 and 11632, General Code). The court, as shown by the second paragraph of the syllabus, held:

“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. Parish v. Parish, 9 Ohio St., 534, and earlier Ohio decisions not followed.”

The Supreme Court in Mulligan v. Mulligan, 82 Ohio St., 426, 92 N. E., 1120, without opinion, reversed the Circuit Court and affirmed the ruling of the trial court by the following entry:

“Judgment reversed and judgment of the Court of Common Pleas affirmed on authority of Parish v. Parish, 9 Ohio St., 534.”

That case was decided in 1910.

The Supreme Court of Ohio, in the case of Bay v. Bay, 85 Ohio St., 417, 98 N. E., 109, again affirmed the principles of the Parish case as to the finality of the decree, after term, dissolving the marital relationship. The Bay case dealt only with property rights, the alleged offending husband having diéd before the petition to vacate the divorce was filed.. The court at page 426 of the opinion said:

“If this petition, and the answer to be filed in the original ease and the amendment thereto, together with the affidavits in support thereof, are to be taken as true, the court was grossly imposed upon and she was fraudulently deprived of an opportunity to defend her rights upon the hearing of the divorce case. But it is conceded that the ruling in Parish v. Parish, 9 Ohio St., 534, which has been steadily adhered to, would preclude any reconsideration of the divorce issue, even if the husband were not now dead.

“The question still remains, Can the defendant be at the same time thus fraudulently deprived of her property rights without remedy? We see nothing, in the judgment or in the reasoning in Parish v. Parish which would justify its extension to this phase of the present case. That case was expressly limited in the opinion 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 of1 divorce a vinculo, though obtained by fraud and false testimony, on an original bill filed at a subsequent term.’ We think that it would be doing violence to the language of the court to hold that ‘sound public policy’ would protect, the fruits of fraud and perjury beyond the mere severance of the marriage relation.

“ An analysis of the cases will disclose the fact that this court has always clearly distinguished the reviewable nature of a judgment in a divorce proceeding respecting property interests, from the finality of the divorce; and that it has gone beyond this, in certain cases and in furtherance of justice, to. declare that the wife may maintain an action for alimony as ‘wife’ although by reason of a previous dissolution by a decree of divorce the matrimonial relation no longer exists.. See Mansfield v. McIntyre et al., 10 Ohio, 27; Cox v. Cox, 19 Ohio St., 502; Cox v. Cox, 20 Ohio St., 439; Woods v. Waddle, 44 Ohio St., 449; McGill v. Deming, 44 Ohio St., 645; Weidman v. Weidman, 57 Ohio St., 101; Boerr v. Forsythe, Admx., 50 Ohio St., 726; Coffman, Admr., et al., v. Finney, Admr., et al., 65 Ohio St., 61; Hassaureh v. Markbreit, Admr., 68 Ohio St., 554.”

The syllabus provides:

“Where a husband, by fraud and false testimony, obtains a decree of divorce for the wife’s aggression and the decree also, by reason of the wife’s aggression, so found, bars her of alimony, dower and all other interest in the husband’s property, the decree dissolving the marriage relation is conclusive; but, when the court making such decree did not have jurisdiction of the wife’s person, she may thereafter have said decree and the issues opened up so far as they relate to her interests in the husband’s property and be let in to defend. ’ ’

That case was decided February 12, 1912. It clearly maintains the public policy of the state as announced in the Parish case, with regard to the finality of that part of a divorce decree which dissolves the marital* relations of the parties where the court, as in the instant case, had acquired jurisdiction of the parties and has by law jurisdiction of the subject matter of the case.

The claim that the public policy of the state was changed by the constitutional amendments of 1912 (adopted September 3, 1912) is unfounded. The right to a review of a decree of divorce on questions of law, including the dissolution of the marital relationship, by the Court of Appeals was clearly established by Section 6, Article IV of the Constitution, as amended and effective September 3, 1912. But such right to prosecute an appeal on questions of law, within the provisions of the statute providing for appellate procedure, is not to be confused with an attempt to vacate such decree under Section 11631, General Code, after term and after the time for appeal has been permitted to lapse. The case law of the state is in unambiguous terms that the provisions of Section 5354, Revised Statutes, which became effective in 1879 (now Section 11631, General Code), do not apply to divorce cases.

The cause of Beck v. Beck, 45 Ohio App., 507, 187 N. E., 366, and 48 Ohio App., 105, 192 N. E., 791, is of no assistance to this defendant. ■

The first case was one in which the plaintiff by separate. action was seeking to reverse an adverse ruling wherein he was seeking to procure the vacation of a decree of divorce and an order to pay alimony in an independent action wherein defendant in error was plaintiff and plaintiff in error was defendant. The grounds upon which he based his right to vacation of the decree, as shown by the amended petition filed after term, were that the decree was procured by fraud and that the court was without jurisdiction.

The Court of Appeals found the appeal was not •well taken on the question of fraud in procuring the divorce decree and would have likewise disposed of the question of jurisdiction to enter a decree of alimony to be paid out of the defendant’s property then within the jurisdiction of the court had it not been for the fact that there was an unsurmountable defect in the affidavit filed in the case, upon which constructive service was based. The court thereupon held that, because the court was not vested with jurisdiction of the person of defendant in the divorce action, it was without power to enter a decree. It was therefore held that the trial court should have vacated the decree. The decision was founded entirely on the fact that the court hearing the divorce case was without jurisdiction of. the person of defendant. The court then said that the record disclosed that the plaintiff in error started an action in Ashland county but because of this proceeding it must be considered that he abandoned such action and entered his appearance in the Coshocton county case and should be permitted to file his answer in such action.

Thereafter, the plaintiff in error was granted a decree of divorce in the Ashland county case, the defendant in error not having answered because the Court of Appeals had said that the plaintiff in the Ashland county case must have abandoned such case, having entered his appearance in the action in Coshocton county. The jurisdiction of the Coshocton county Common Pleas Court was transferred to. Tuscarawas coun-ty on what was held to be a motion for change of venue. The plaintiff in that case then asked for an order for temporary alimony. .This motion was opposed by the defendant on the ground that the issues in that action had been, concluded by the divorce decree granted him in the Ashland county action. The trial court overruled the defendant’s plea of res judicata, and the Court of Appeals affirmed such ruling.

Nowhere in either of those cases was the power of a court (having acquired jurisdiction of- the parties) to vacate a decree of divorce entered therein after term considered. And even if by any stretch of the imagination what the court in the last appeal said in regard to the Parish case could be understood as opposed to the theory of the Parish case, such court of course could not overrule the Supreme Court.

The holdings of our courts on this subject are not without support in other jurisdictions.

In the case of Zeitlan v. Zeitlan, 202 Mass., 205, 88 N. E., 762, the court said at page 207:

“This is a petition to vacate a decree of divorce obtained by the respondent against the petitioner. The jurisdiction of the court that granted the divorce, both over the case and the parties, was perfect. The ground on which the petition rests is that the case for a divorce was made out at the hearing by perjured testimony, knowingly procured by the libellant. The only question presented is whether a decree of divorce so obtained should be vacated upon proof of the fraud practiced upon the court.

“It is in the interests of justice that, after a trial and final judgment in a case, the matters heard and adjudicated shall not be opened for a further'hearing because of a supposed error in the determination of facts by the tribunal that heard the evidence. A contention that some part of the material testimony was false might be made with plausibility in a large proportion of the cases that are tried. A contention that the prevailing party knowingly gave or procured false testimony, upon an issue involved, might be made and strongly supported in a great many cases. It is against public policy to open cases on no other ground than this. ’ ’

In Clarke v. Clarke, 262 Mass., 297, 159 N. E., 750, the second paragraph of the syllabus provides:

“Allegations presented in a petition by a libellee filed three years and eight months after the entry of a decree absolute and seeking that such decree be vacated, to the effect that the petitioner had not committed adultery, which was the sole charge made in the libel; that she was induced to make admissions of guilt by the threats and duress to which she was subjected by the libellant; and that the libellant after the decree became absolute had made false representations and promises which he did not fulfill, furnish no ground for vacation of the decree, it appearing that the court had jurisdiction of the case and that the libellee had not been wrongfully deprived of her day in court.”

See, also, Nation v. Nation, 206 Ala., 397, 90 So., 494.

It is not to be supposed that the decisions are uniform upon this subject. In 3 Nelson on Divorce and Annulment, 187, Section 28.31, the author says:

“In a number of instances it has been held that it is such fraud as to warrant the vacation of a divorce decree that it was applied for and obtained by the opposite spouse after a pretended reconciliation and without warning or advising the other party of intention to do so. In several instances, it has been held to be such fraud as to warrant setting aside a decree that the spouse who obtained it lulled his or her consort into the belief that the suit was nonexis'tant, or had been dropped, or would be dismissed. Where such circumstances are alleged, it is up to the court to which the application to vacate is presented to weigh and appraise the testimony and determine wherein the truth lies, and it must necessarily be given a fair range of judgment. If it does not appear that the applicant for relief from the decree was free from fault and has a meritorious defense, the application is properly denied.”

The text just quoted is supported by the following cases: Haygood v. Haygood, 190 Ga., 445, 9 S; E. (2d), 834, and Kronman v. Kronman, 129 Cal. App., 10, 18 P. (2d), 712.

In the Haygood case, the parties lived in Clayton county as husband and wife. The husband thereafter filed suit for divorce in Pulton county. After the filing of the divorce suit the husband told the wife that “he was not going through with the divorce,” and they thereafter cohabited as husband and wife until the decree was taken. Paragraphs three, four, and five of the headnotes in the Southeastern Reports are:

“3. The constitutional provision that divorce suits shall be brought in county wherein defendant resides, if in state, or, if defendant be not a resident of state, in county wherein plaintiff resides, is mandatory and exhaustive, and jurisdiction cannot be conferred by consent, waiver, or otherwise on courts in other counties. Const. Art. 6 Sec. 15 Par. 1.

“á. On appeal from judgment overruling demurrer to petition in equity to declare divorce verdicts and decree void, no presumption of jurisdiction of court granting divorce can prevail on basis of such verdicts and decree, where petition charged want of jurisdiction of divorce suit because defendant, residing in state, did not reside in county wherein suit was brought at time of institution thereof.

“5. A petition, alleging that petitioner’s husband, while residing with petitioner in a certain county, instituted divorce suit in another county, that they cohabited until granting of final decree, that he told petitioner at all times before final hearing and second divorce verdict that he was not going through with the divorce, that court did not have jurisdiction of parties, and that defendant swore falsely, that bona fide state of separation existed between parties, alleged sufficient grounds for declaring divorce verdicts and decree void for want of jurisdiction.”

■ In the Kronman case, supra, the plaintiff filed an action for divorce upon which an interlocutory decree of divorce from the defendant was entered by default on plaintiff’s complaint of extreme cruelty. Later without plaintiff’s knowledge, the defendant requested the court to make its decree final, which was done without notice to the plaintiff and without her knowledge. There was evidence that the parties meantime had resumed marital relations, living together as husband and wife. The court held as shown by the headnotes in the Pacific Reporter:

“1. Court has inherent power, not limited by statute, to vacate decree obtained by fraud.

“2. That notice of motion to vacate decree stated it was made under statute and for fraud did not deprive court of inherent jurisdiction to vacate decree obtained by fraud.

“3. Law favors reconciliation between separated spouses.

“4. Obtaining final divorce decree, after reconciliation and resumption of marital relations following interlocutory decree, without notice or knowledge of other spouse, is extrinsic fraud as to both other spouse and court.

“Obtaining a final divorce decree under such circumstances is extrinsic fraud, not only as to the other spouse, but also in so far as the court itself granting such decree is concerned, since it is effected through concealment from the court in an ex parte proceeding of facts which the party requesting the final decree is bound to disclose, and which, if disclosed, would have rendered improper the granting and impossible the procurement of the final decree.”

In the case of Walker v. Walker, 198 Wash., 150, 87 P. (2d), 479, the husband brought an action for divorce after two previous cases brought by the wife had been dismissed, and an interlocutory decree had been entered in February 1932. The final decree was' entered in April 1934. There was set off to the wife a fair proportion of the husband’s property by such final decree. In bringing action to set aside the decree, the. defendant wife alleged that after the interlocutory decree the parties had agreed to abandon the divorce proceeding and would, in an attempt to save some of their mortgaged property, work the home farm and resume their marital relation in every respect. The court held as shown by the Pacific Reporter headnotes:

“1. Whether a final divorce decree obtained by fraud should be annulled is within discretion of court which entered it.

‘ ‘ 2. Where trial court refused to set aside final divorce decree entered by it on ground that it was procured by fraud, Supreme Court would assume that trial court was cognizant of its inherent power to set decree aside and either determined that fraud had not been committed or concluded that it was not for the public interest to annul the decree.

“3. Refusal by court which entered divorce decree to set it aside on ground it was obtained by fraud was not abuse of discretion, especially where wife alleged that husband and wife could not and would not assume their former relations, and findings indicated that it was highly improbable that a different property division would be made in another divorce action. ’ ’

In the case of Nation v. Nation, supra, the husband' had filed a petition for divorce against his wife on the ground of marital infidelity upon which a final decree had been entered. The plaintiff, by bill in that action, sought to set aside and annul the decree. The plaintiff’s evidence showed that the final decree was entered June 17, 1919, but that the parties continued to live together as husband and wife until September 1919. When the plaintiff first learned of the divorce she left •the defendant and did not thereafter sustain the marital relationship. It was further charged by the plaintiff that the infidelity charged against her in the divorce case was untrue and was supported by perjured testimony. She charged further that her husband had assured her the divorce case was filed in a fit of anger; that he would have it dismissed; that on subsequent occasions he told her the suit had been withdrawn; that he had no intention of getting a divorce; and that these assurances were confirmed by his continuing to live with her as husband. Upon these allegations the court sustained a demurrer to the plaintiff’s bill and held, as shown by the Southern Reporter headnotes:

“2. One attacking a judgment for fraud, accident, or mistake must not only show that the judgment was the result of such intervention, but also that he was free from fault or neglect.

“3. Where wife was served with writ of subpoena in action for divorce, and husband stated he would have the suit dismissed, and continued to live with her after he was granted a default divorce without her knowledge, she was not entitled to have the decree set aside for fraud, where she made no effort to ascertain for herself the truth of her husband’s representations.

“4. A bill to annul a default decree of divorce obtained by husband, upon the ground of husband’s procurement of perjured testimony, was without equity.”

The Nation case gives support to the plaintiff's theory of this case.

It is not suggested in any of the cases referred to in Nelson on Divorce and Annulment that, in the states where decrees of divorce have been vacated after term on the ground of fraud, questions of public policy were involved. In any event, the Supreme Court of Ohio has definitely held that the vacating of a decree of divorce after term, so as to recreate the marital relation, otherwise than in the regular channels of appellate procedure, is against sound public policy, and that the provisions of Section 11631, General Code, do not apply to that part of a divorce decree wherein the marital relation is dissolved, and although strong arguments against such holding have since been presented to the court on two occasions, the court has steadfastly adhered to the rule of the Parish case.

In 37 Harvard Law Review, 409, dealing with the doctrine of stare decisis, the author quotes the following:

“ ‘A deliberate or solemn decision of a court or judge, made after argument on a .question of law fairly arising in a case, and necessary to its determination, is an authority, or binding precedent, in the same court or in other courts , of equal or lower rank, in subsequent cases, where “the very point” is again in controversy; but the degree of authority belonging to such a precedent depends, of necessity, on its agreement with the spirit of the times or the judgment of subsequent tribunals upon its correctness as a statement of the existing or actual law, and the compulsion or exigency of the doctrine is, in the last analysis, moral and intellectual, rather than arbitrary or inflexible.’ ”

The Supreme Court has twice in clear and unmistakable terms affirmed the doctrine of the Parish case, supra, as a doctrine of public policy in this state. Until that court has overruled the legal principle of the Parish case, it is the duty of this court to abide by the decision.

There has been no radical change in the divorce problem since the last pronouncement of the Supreme Court in 1912. If anything, a more liberal view, toward social betterment by affording relief from matrimonial obligation where harmonious family relationship is impossible seems to be at hand. The family unit is the base of our social organization. The protection and support of the family relationship and the obligation flowing therefrom must be the first consideration of the law.

The Legislature has by law provided ten grounds for divorce which is by far more liberal than the provisions in a great many other states, in some of which only one or two grounds are provided. The divorce problem is a most difficult one and when considered by our Legislature in recent years instead of making it more difficult to seek relief from matrimonial relationships, it has tried to help solve the problem by enacting additional restrictive regulations as a condition precedent to consummating the marital relation.. Whatever change of procedure in dealing with domestic relations under changing conditions is neces- • sary in solving these important social problems, it is for the Legislature and not the courts to point the way.

The rule of the Parish case was pronounced in 1859. The Legislature has never found it necessary to enact a contrary rule although it has twice dealt with related , subjects. This court is therefore bound by the Parish case. The facts here presented, as above set forth, are , not nearly as strong as the facts in the Parish case, supra, or the Mulligan case, supra. The defendant. has little to recommend him to the court. The trial court in the divorce case undoubtedly had acquired jurisdiction of his person. By his conduct he condoned the claimed acts of aggression of the plaintiff. He remained with the plaintiff knowing full well that the divorce case was still pending, so he took part in the very fraud about which he complains. His suggestion that the plaintiff be put on probation to him until her conduct meets a standard which he should determine could be only the demands of a supreme egotist. The evidence shows that the parties could never join in a true family relationship, so that no social benefit will come of vacating this divorce decree.

But even though the facts are weak, because of the conduct of the defendant, the plaintiff’s conduct in continuing to cohabit with the defendant after bringing her action for divorce is not to be recommended and were it not for the Ohio rule that it is against public policy to vacate that part of a divorce decree which has dissolved the marital relations of the parties, after term, in a case in which the facts could be said to justify such action when considered in the light of all the circumstances, I might come to a different conclusion.

Having concluded that the court is bound by the rule of the Parish case, it is unnecessary to consider at length the question of continued cohabitation of the parties as husband and wife after one of the parties had filed a petition for divorce and the continuation of such relationship until trial, without making such facts known to the.trial court at the time of trial, as constituting a fraud upon the court. It is enough to say, under the circumstances, that such conduct would, without question, constitute fraudulent conduct. The plaintiff on the trial of either a contested or uncontested case owes the duty to disclose the conduct of the parties after the institution of the divorce case. See Shinn v. Shinn (1947), 148 Neb., 832, 29 N. W. (2d), 629, 174 A. L. R., 510.

Under the rule of the Parish case, supra, the motion should be overruled.


source: Caselaw Access Project

author: Ross, P. J.

license: Public Domain

text:
    The State, ex rel. City of Cincinnati et al., v. Schneider, Judge, et al.

      (No. 7378
    Decided December 11, 1950.)

      Mr. Henry M. Bruestle, city solicitor, and Mr. James W. Farrell, Jr., for relators.

      Messrs. Barbour, Kimpel & Allen, for respondents.
   Ross, P. J.

In an action in the Common Pleas Court, the plaintiffs (respondents herein) sought a mandatory injunction against the city of Cincinnati, whereby such city would be compelled to furnish water to the plaintiffs. The plaintiffs’ property was situated outside the boundaries of the city. No restraining order pending the hearing of the action was granted. On February 2, 1950, judgment was entered in favor of the city and the petition dismissed.

The judgment contained the following clauses:

‘ ‘ The court further finds that undue hardship would result to plaintiffs if defendants immediately discontinued water service to plaintiffs’ properties.

“It is therefore further ordered, adjudged and decreed that defendants be and are hereby temporarily enjoined from discontinuing water service to plaintiffs for a period of 180 days.”

Appeal was taken from that judgment and while pending in the Supreme Court, on motion, a temporary restraining order was requested by the plaintiffs in the original action and granted.

After remand to the trial court incorporating an affirmance of the original judgment of the trial court, that court entered a new judgment nunc pro tunc.

This new judgment was in the following terms:

“This cause came on to be heard on the motion of the defendants for judgment on the pleadings filed herein, and on consideration thereof the court finds said motion well taken and grants the same; and the plaintiffs not desiring to plead further,

“It is therefore ordered, adjudged and decreed that the injunction prayed for be and is hereby denied and that the petition be and is hereby dismissed at the costs of the plaintiffs, taxed at $-.

‘ ‘ The court further finds that undue hardship would result to the plaintiffs if defendants immediately discontinued water service to plaintiffs’ properties and that a reasonable time should be allowed the plaintiffs to secure an adequate water supply from some other source.

“It is therefore further ordered, adjudged and decreed that the defendants be and they are hereby temporarily enjoined from discontinuing water service to the plaintiffs until April 1, 1951; to all of which defendants by counsel except.

“The court orders that this order and judgment be now entered by the clerk of this court upon the journal of this court this 8th day of November, 1950, said order and judgment to take effect as of the 2nd day of February, 1950, in place and stead of order and judgment previously entered on February 2, 1950. ’ ’

The purpose of this proceeding in mandamus is to have this latter judgment entry expunged from the journal records of the trial court.

The defendants in the original action (relators here) also filed an appeal from such nunc pro turn judgment, and such appeal is now pending in this court and cannot be heard for some time.

“1. The power of the trial court to make an entry nunc pro tunc after term does not extend beyond the power to make the journal entry speak the truth.

“2. A trial court is without power to alter his conclusion by nunc pro tunc entry at a term subsequent to the term of the original entry.” Reinbolt v. Reinbolt, 112 Ohio St., 526, 147 N. E., 808.

The trial judge was called to the witness stand in this proceeding. He testified that at the time he entered the original judgment he did not know an appeal was contemplated by the plaintiffs in the original action. He testified also that the period of restraint stated in the nunc pro tunc entry was not the period mentioned in the original entry, but that he felt consideration of justice required the additional time allowed by the entry nunc pro tunc.

It is therefore evident that the original entry embodied just what the trial judge did at the time it was entered, and what he intended to do.

This court is not required by the issues now presented to state whether the act of the trial court in granting a temporary restraining order in the original judgment was void. In any event, it is clear that the trial court lacked power after affirmance of the original judgment and remand to it, and after the term during which the judgment was entered, to modify its terms and enter a new restraining order, covering an entirely different period than originally specified or contemplated. Obviously the attempt to exercise such power through the fiction of a nunc pro tunc entry rendered the judgment embodying such attempt void.

The fact that these relators — defendants in the original action — employed dual methods of avoiding the effect of such void judgment cannot prejudice their right to the relief sought in the instant proceeding.

It is true that they could ignore such judgment and proceed accordingly. However, they are not bound to do so. They are entitled to have the records of the trial court cleared of a journal entry which, if ignored, would, at least, show an apparent disrespect of the trial court not entertained by them.

The writ will be granted.

Writ allowed.

Ross, P. J., Hildebrant and Matthews, JJ., concur in the syllabus, opinion and judgment.


author: Phillips, J.

text:
    Trock, Appellee, v. Village of Hubbard et al., Appellants.
    (No. 1229
    Decided March 16, 1950.)

      Mr. C. H. Anderson, for appellee.

      Mr. Leo L. Luehette, for appellants.
   Phillips, J.

In his petition filed in the Court of Common Pleas, plaintiff (so designated here), a nonresident and nontaxpayer of the village of Hubbard, sought to permanently restrain defendants (so called here), the village of Hubbard, its mayor, solicitor, and the members of the Trumbull county board of elections, from placing on the ballot and submitting to the electors of Hubbard township, of which plaintiff is a resident, at the election to be held on November 8, 1949, the issue of the annexation of land situated in Hubbard township to the defendant village, in accordance with ordinance No. 1090 of such village, passed by its council on September 6, 1949, and entitled “An ordinance authorizing the Board of Elections of Trumbull county, Ohio, to submit to the voters of Hubbard township the annexation of certain territory”; and a judgment of the Court of Common Pleas declaring such ordinance invalid and void.

Defendant village moved to dismiss the petition on the grounds that plaintiff failed to comply with the provisions of Section 4314, General Code, requiring him to make a demand on and receive the refusal of the solicitor of such village to bring the action, before filing his action; and that he furnished no security for costs.

Defendant village also demurred to plaintiff’s petition on the ground that plaintiff was neither a taxpayer nor resident of the village of Hubbard, and therefore was not a real party in interest, and could not maintain such action; and hence his petition did not state a cause of action against defendants.

The trial judge did not rule specifically on the motion or demurrer but proceeded to hear the action on its merits, which was tantamount to overruling defendant’s demurrer. Upon hearing had on November 5, 1949, judgment was entered declaring such ordinance invalid and void.

Defendants appealed from that judgment on questions of law.

By assignments of error defendants contend that “the trial court erred in failing to consider and to sustain defendants’ motion for dismissal” and “in failing to consider and failing to sustain defendants’ demurrer to plaintiff’s petition.”

Defendants contend that no demand was made “upon the village solicitor,” and no security was given for costs before plaintiff filed his petition in the Court of Common Pleas, which statement is supported by the allegation of plaintiff’s petition, in which he alleges that he brought his action “as a taxpayer and on behalf of all other taxpayers in Hubbard township,” and by the evidence contained in the bill of exceptions.

Clearly, as shown by the pleadings and the evidence, plaintiff had no right to bring such action as a taxpayer on' behalf of all other taxpayers of Hubbard township because he failed to furnish security for costs as required by Section 4314, General Code, and failed to make legal demand upon the proper official to commence such action.

The time for submission of the ordinance pleaded having expired, it follows that a new valid ordinance must be adopted authorizing the submission of the question upon a future date to be fixed.

Obviously none of plaintiff’s rights is affected now by the ordinance pleaded. Accordingly all questions involving the rights of plaintiff as an individual are moot.

Furthermore, it is apparent that plaintiff instituted his action prematurely, because it has not been determined that the annexation would have been approved by the electorate. Until such approval, none of plaintiff’s rights could or would have been affected.

Therefore, the trial judge should have sustained defendants’motion and dismissed plaintiff’s action at his costs.

The judgment of the trial court is reversed, and coming now to render the judgment the trial judge should have rendered plaintiff’s petition is dismissed at his costs.

Judgment reversed.

Nichols and Conn, JJ., concur.

Conn, J., of the Sixth Appellate District, sitting by designation in the Seventh Appellate District.