
    Diehl v. Diehl.
    (Decided January 26, 1933.)
    
      Messrs. Nichols, Morrill, Wood, Marx & Qinter, for plaintiff in error.
    
      Mr. Province M. Pogue, Mr. Bert H. Long and Mr. Robert H. French, for defendant in error.
   Kunkle, J.

This case comes before this court upon a proceeding in error to reverse the judgment of the court of common pleas of Hamilton county.

The petition in error contains eleven different grounds upon which it is claimed the judgment in question should be reversed.

We have read with care the record in this case for the purpose of ascertaining the facts. To write an opinion which would review all the facts, either directly or indirectly involved, is impracticable.

Counsel have favored the court with unusually voluminous briefs, covering many typewritten pages. In these briefs the relevant facts- involved in the litigation between these parties are reviewed, and the pertinent authorities bearing upon such facts are discussed in detail.

In brief, however, the parties to this proceeding were formerly husband and wife. The family troubles of these people seem to have been the subject of much litigation in the courts of Hamilton county.

It appears from the record and the briefs of counsel that in 1927 the original divorce case brought by Grace A. Diehl against her husband, George S. Diehl; was tried before Judge Hoffman. He dismissed both the petition of plaintiff and the cross-petition of the defendant.

The judgment of Judge Hoffman was reviewed by the Court of Appeals of Hamilton county, and that court reversed the ruling of Judge Hoffman and remanded the case for a new trial.

It also appears from the record that in June, 1928, the divorce proceeding was retried by Judge Darby of the court of common pleas. He granted Grace A. Diehl a divorce from her husband and made a disposition of the property owned by the parties. George S. Diehl prosecuted error to this court seeking to reverse the judgment of Judge Darby in so far as the awarding of alimony was concerned.

The Court of Appeals modified the judgment of Judge Darby in so far as the alimony was concerned to the extent of $5,000.

No effort was made by George S. Diehl to reverse or modify the judgment of the common pleas court in so far as the divorce was concerned. An application was made to the Supreme Court to require the Court of Appeals to certify its record. This application was denied. Therefore the judgment of Judge Darby, rendered in 1928, as modified by the Court of Appeals, in so far as the alimony was concerned, fixed the status of the parties until the present action was instituted by George S. Diehl in 1929.

The petition of George S. Diehl, after referring to the judgment originally rendered by Judge Darby, and describing by metes and bounds what are known as the Linwood avenue property, the Hosea avenue property, and the St. Louis flat building, contains the' following recital: “This plaintiff says that said judgment was obtained by fraud practiced by the successful party, Grace A. Diehl, m that she testified before the Court in said cause falsely to facts which were not true and which with due diligence on the part of this plaintiff could not have been discovered at the time of said trial, to-wit, that said Grace A. Diehl had inherited certain money from members of her family which she had contributed toward the purchase price of the fiat building, parcel No. 2, hereinabove described, that in truth and in fact the said Grace A. Diehl never at any time contributed any money toward the purchase price of any of the property owned by the plaintiff herein prior to the judgment herein, nor did she at any time contribute any money or financial assistance in any property owned by plaintiff or defendant or to the living expenses of the family of the parties hereto. That by reason of the false testimony so given by defendant hereto, Grace A. Diehl, the Court in rendering said judgment was fraudulently and wrongfully imposed upon and induced to render a judgment to which the said Grace A. Diehl would not have been entitled had her testimony not been false. The plaintiff therefore asks that the said judgment be set aside.”

The petition in terms as clear as the English language can express shows that the cause of action of the plaintiff was that Grace A. Diehl secured the judgment in question by fraud, in that she testified falsely to the facts set forth in the petition, and that by reason of such false testimony she caused a judgment to be rendered in her favor to which she would not have been entitled had her testimony not been false.

To this petition the defendant filed an answer in which she referred to the decree in the court below, described the course of the litigation, and denied every allegation of the petition not specifically admitted to be true, and further stated that plaintiff swore to a warrant which was issued out of the municipal court of Cincinnati, causing defendant to be arrested on the charge that she had falsely sworn to the facts alleged in the petition, and that the court dismissed the defendant.

To this answer the plaintiff replied, admitting the review of the case by the higher courts, as referred to in the answer, and also admitting that defendant was arrested in the municipal court of Cincinnati and was dismissed, but denied that the same have any relevancy in this cause, and denied all the averments of the answer not specifically admitted.

The above, in brief, constitute the issues in this case. They constitute the only issues which were submitted to Judge Ryan for consideration.

Section 11631, General Code, provides when a judgment of the common pleas court or of the Court of Appeals may be modified after term. Paragraph 4 is as follows: “For fraud practiced by the successful party in obtaining a judgment or order. ’ ’

Paragraph 10 is as follows: “When such judgment or order was obtained, in whole or in a material part, by false testimony on the part of the successful party, or any witness in his behalf, which ordinary prudence could not have anticipated or guarded against,.and the guilty party has been convicted.”

The issues raised by the pleadings in this case clearly show that this proceeding was brought under the provisions of paragraph 10 of Section 11631, General Code. The petition specifically states that the fraud consisted of false testimony given by Grace A. Diehl in the respects stated in the petition, and that without such false testimony the judgment in favor of Grace A. Diehl would not have been secured.

Counsel for defendant in error in their briefs elaborate upon the theory that the judgment in question was secured by virtue of a conspiracy entered into between Grace A. Diehl and a Mr. Newhall; that such conspiracy constitutes the fraud complained of, and brings the case within the provisions of paragraph 4 of Section 11631, General Code.

We thinlc it sufficient to say that no such issue is raised by the pleadings. We have also read the record with care, and find no testimony supporting such contention. The testimony in the case before Judge Ryan is to a very large extent a repetition of the testimony that was taken before Judge Darby, and in such testimony Mrs. Diehl states and restates that she did receive substantially $3,000 from her relatives in the form of gifts and inheritances, which she turned over to her husband. She at different times explains her idea of what constitutes an inheritance and the sense in which she used that term.

We cannot escapé the conclusion that this proceeding, under the pleadings and the evidence, must be held to have been brought under the provisions of paragraph 10 of Section 11631, General Code, and, as one of the provisions of paragraph 10 is that the guilty party must have been convicted of perjury, we find that the plaintiff has failed to sustain his case. Grace A. Diehl was not only not convicted, but she was dismissed in the municipal court of Cincinnati upon an affidavit filed by George S. Diebl charging her with perjury in the respects stated in the petition.

In the hearing before Judge Eyan certain records from the building and loan association, from the probate court, and from the bank were produced. There is no' showing that these records were not available to George S. Diehl at the time of the hearing before Judge Darby. Certain account books of Mr. Diehl were also produced in the hearing before Judge Eyan. He claims he could not secure these books at the hearing before Judge Darby.

We think it sufficient to say that no demand was made for these books. They could have been secured had such a demand been made, as provided by statute. In addition, the record does not support Mr. Diehl’s statement that he was prevented, by reason of an injunction from going to the house prior to the hearing before Judge Darby. This injunction was dissolved before the hearing was had before Judge Darby.

Admitting, however, the most that can be claimed from these additional books and papers, when the entire record is considered we think the plaintiff below failed to prove any charge of fraud by clear and convincing evidence, and therefore the judgment of the lower court was not sustained by sufficient evidence.

Counsel agree that the judgment may not be disturbed unless the plaintiff below establishes fraud by clear and convincing evidence, whether under paragraph 4 or paragraph 10 of Section 11631, General Code.

Without attempting to discuss the many authorities that are pertinent, we will briefly call attention to the case of Michael v. American National Bank, 84 Ohio St., 370, 95 N. E., 905, 38 L. E. A. (N. S.), 220.

The second paragraph of the syllabus is as follows: "The fraud or undue advantage for which a court of equity will set aside a judgment or decree, must consist of extrinsic acts outside of and collateral to the matter actually tried by the first court and not related to the matter concerning which the judgment or decree was rendered. ’ ’

The question as to whether Grace A. Diehl did or did not give to her husband the sum of approximately S3,000, which she claims was received by her' in the form of gifts and inheritances from her relatives, was one of the main contentions in the hearing before Judge Darby. This issue was also referred to in other litigation had between these parties.

In Mason v. Tremayne, 115 Ohio St., at page 398,154 N. E., 732, the syllabus reads: “Where a party seeks a new trial after term, upon the ground of false testimony on the part of the successful party or any witness in his behalf, pursuant to paragraph 10 of Section 11631, General Code, the record must affirmatively show that ordinary prudence could not have anticipated or guarded against such false testimony and that the guilty party has been convicted; if newly discovered evidence, material for the party applying, is urged as a ground for a new trial, it must be shown that such newly discovered evidence could not with reasonable diligence have been known and produced at the trial. In an absence of such showing, a new trial should be denied.”

The same general rule as to diligence applies whether the proceeding is had under paragraph 10 or paragraph 4 of Section 11631, General Code, and we are clearly of opinion that the plaintiff has not brought himself within the rule above announced. See, also, the reasoning of the court in the case of Cincinnati Gas & Electric Co. v. Coffelder, 21 C. D., 26, 11 C. C. (N. S.), 289, being a decision of the Circuit Court of Hamilton county.

There is another phase of the case to which we should call attention. It is conceded that in 1928 these parties were divorced, and, notwithstanding the extended litigation between them since that date, no effort has been made to reverse or modify that portion of the judgment granting the divorce. The divorce therefore stands. It is admitted that at the time of the granting of the divorce the title to the residence property was in the name of Mr. Diehl; it is also admitted that the title to the flat building referred to as parcel No. 2 was in Mrs. Diehl, and had stood in her name for several years prior to the commencement of the litigation; that the title to the Hosea avenue property was in Mr. Diehl. The deeds made at different times by Mr. Diehl to Mrs. Diehl for the property known as parcel No. 2 have not been set aside.

The trial court seems to have proceeded upon the theory that the statutes governing the disposition of the property of the parties where a divorce is granted had no application.

The divorce in this case was granted to Mrs. Diehl by Judge Darby, on account of the aggression of her husband, George S. Diehl.

At the time of the granting of such divorce, and for several years prior thereto, the title to parcel No. 2 was in Mrs. Diehl.

Section 11990, General Code (91 Ohio Laws, 349), defines the status of parties as to their real estate where the divorce is granted by reason of the aggression of the husband: “When a divorce is granted because of the husband’s aggression, by force of the judgment the wife shall be restored to all her lands, tenements and hereditaments, not previously disposed of, and the husband barred of all right of dower therein * * * and allow such alimony out of her husband’s property as it deems reasonable * * *."

The trial court was without authority to modify the rights which Section 11990, General Code, conferred upon the wife where the divorce was granted her by reason of the aggression of her husband.

Section 11991, General Code (91 Ohio Laws, 349), also defines the rights of the wife, in the event she survives her husband, in the real estate not allowed to her as alimony, of which he was seized during coverture, and in which she had not relinquished her right of dower.

With the divorce between the parties. still in full force and effect, the trial court was without authority to modify the rights of the wife under Section 11991, General Code.

Among the many authorities cited by counsel relating to indefinitely prolonging litigation is the case of Minetti v. Einhorn, 36 Ohio App., 310, 173 N. E., 243.

This is a well-reasoned opinion by Judge Ross of the Court of Appeals of Hamilton county. In the course of the opinion it is stated: “As it has been repeatedly said before by courts of this state, if judgments were vacated upon an allegation of perjured testimony, there would be no stability to any judgment, and no end to litigation.”

We think the reasoning of Judge Ross as found in the above case is applicable to the case at bar.

Without considering the many other questions which counsel have presented, we are clearly of opinion not only that the judgment of the lower court should be reversed, but that this court should render the judgment which the lower court should have rendered, vis., dismiss the petition of the plaintiff below.

Judgment reversed and petition dismissed.

Allread, P. J., and Hornbeck, J., concur.

Judges of the Second Appellate District sitting by designation in the First Appellate District.  