
    [No. 7925.
    Department One.
    July 8, 1909.]
    Laura J. Graham, Appellant, v. E. T. Graham, Respondent.
      
    
    Divorce — Decree—Vacation—Duress. The courts have 'jurisdiction to vacate a decree of divorce for fraud in obtaining it, and a wife is entitled to the vacation of a - decree, < where she moved therefor within one month, and it appears that she was induced to enter a general denial and make no contest through the duress of threats by the husband to commit suicide, which were false and made to conceal his intention to márry another, and which, affected- her health and nervous system, she having a meritorious defense .to, the action. :. ■
    Appeal from "a judgment of the superior' court for Ring county, Tallman, J., entered November 30, 1908, dismissing a petition to vacate a decree of divorce, upon sustaining a demurrer thereto.
    Reversed.
    
      Fred C. Brown, for appellant.
    
      J. D. Bauer, for respondent.
    
      
      Reported in 102 Pac. 891.
    
   Chadwick, J.

On September 1, 1908, a decree of divorce was entered in the superior-court of King county, dissolving the bonds of matrimony then existing -between appellant and respondent. On October 1, 1908, appellant filed her petition under the statute, praying for an order vacating the decree, and for permission to withdraw her -answer and defend the suit. For the sake of the discussion of -the only legal proposition involved, we deem it necessary to set out, in part at least, the facts alleged- in her petition. She sets up the original complaint, in which her husband had asked a divorce upon the ground that she had treated • him with extreme cruelty, had refused to live with him,’ had heaped personal indignities upon him,- rendering his life burdensome, and that there was such incompatibility -of temper between them that they could'no longer live together as husband and wife. No facts were alleged in his complaint that would have saved the pleading from an attack by general demurrer. To this complaint she had entered a general denial. The trial was had without her presence, and a decree entered, so far as the record shows, upon the respondent’s testimony alone.

She further alleges that, prior to November, 1907, the relations existing from • the time of their marriage, in March, 1882, had been most amicable; that' she had been-a dutiful wife, and that he had been a fond, faithful, and indulgent husband; that from the time mentioned he began to grow cold and distant, and cease to manifest that love and affection that had so .long characterized .his conduct toward her; that in June, 1908; he requested her to procure a divorce ; that this she refused to do; that his inattention and neglect then became more marked, until' finally, with intent to deceive ;her as, to. his real, motive, he. more than once threatened to commit suicide unless she consented to allow him to procure a divorce; that he procured a revolver and made a pretended attempt to take his life; that his conduct so terrorized her and their children that she was reduced in health and so shocked in her nervous system that she was induced to believe that he would commit suicide, and so she yielded to his demand; that thereafter, on August 28, he sent an attorney, whom he had employed, to her with a copy of the summons and complaint, together with an answer which he had prepared; that she signed the answer; that respondent thereafter telephoned her that he would take his life if she resisted the divorce or appeared in the courtroom at the hearing, all of which she believed, and for that reason she did not appear. She further alleges, that all of the’ facts set forth in his complaint were false and untrue; that his threats of suicide were made with fraudulent intent to cover his real purpose, which was to marry another, a purpose he had thereafter admitted to her; that she has a good defense to his complaint, and that he has neglected her and their children, so that they are in necessitous circumstances. It would seem that this recital were enough to warrant the court in vacating the decree, and we take it that it would have done so but for its conception of the case of Metler v. Metler, 32 Wash. 494, 73 Pac. 535, wherein this court said:

“The reasons for making this distinction between judgments in this particular action and judgments in ordinary actions are apparent. A decree of divorce affects the status of the parties, both with respect to their relations to one another and their relations to the public. By the terms of the statute, divorced persons may lawfully marry, after a limited time from the rendition of the decree, and to permit its vacation is to make it possible, under the guise of law, to inflict injury and suffering upon persons whose innocence entitles them to every protection the law can afford. It is therefore highly important, not only for the sake of the parties thereto, but also for the sake of such persons, that decrees of divorce should not be granted except for specific causes provided by law,' proved and found by the court, in actions where the court has undoubted jurisdiction over the subject-matter and.the parties; but it is also equally important that the decree, when once granted, be not disturbed by the court granting it.”

The power of a court having jurisdiction of the parties to vacate a decree of divorce, once formally entered, is therefore squarely before us. In the Metler case the court also said:

“The court can, of course, lawfully vacate such decree when entered without jurisdiction, and perhaps where it is the result of fraud practiced on the court or the other spouse.”

The Metier case was referred to in McDonald v. McDonald, 34 Wash. 293, 75 Pac. 865, wherein it was said:

“It would seem to be violative of fundamental principles to hold that a divorce decree, fraudulently procured, may not be timely assailed by the innocent party to the proceedings.”

It would seem therefore that, notwithstanding the doctrine frequently announced that a decree of divorce will never be vacated because of the probable evil consequences following the severance of a new relation, bearing as it might after-begotten children, the better rule is that, notwithstanding the decree, a court will reopen and try the case if the decree is the result of a fraud practiced upon the other party or upon the court.

This rule is admitted in the case of Lewis v. Lewis, 15 Kan. 181, cited and relied upon by respondent, although the court refused to reopen the decree, finding no irregularity in the proceeding. This case, however, was distinguished in the later case of Hemphill v. Hemphill, 38 Kan. 220, 16 Pac. 457, wherein the rule here announced was declared. In the case of Whitcomb v. Whitcomb, 46 Iowa 437, cited by respondent, the distinction between the force of a decree entered upon constructive service, the statute having been strictly complied with, and a fraud upon the party or the court, is clearly pointed out. It was held that the decree would not be vacated 'where summons was regularly had by publication, but that the court had power in all cases to vacate a decree obtained by fraud, even though the plaintiff may have subsequently married and become a parent. The case of Ewing v. Ewing, 24 Ind. 468, also relied upon by respondent, followed the case of McQuigg v. McQuigg, 13 Ind. 294. In the case of Earle v. Earle, 91 Ind. 27, after a careful review of all the authorities, the court held that a decree of divorce obtained by fraud may be vacated and set aside as any other decree thus obtained. Continuing, the court said:

“We think, therefore, that when such a wrong has been consummated in the obtaining of decrees of divorce, the courts have the right and owe the duty to set them aside and declare them null and void, and that so far as the case of McQuigg v. McQuigg, supra, and the cases following-it conflict with the conclusion reached, they should be overruled. Very .much good, we think, -will come from the adoption of the rule in divorce cases, and no harm, provided the injured party is not negligent in moving upon the discovery of the fraud. Possibly, in some cases, a second'husband or wife may innocently be made to suffer, but, with proper restriction,- this is not more likely than in the reversal of decrees on appeal to this court.
“It is proper and right-in the administration of the law to protect .innocent third parties, who may marry a divorced man or woman, but it is quite as proper and important to protect the husband and wife and innocent children from fraudulent divorces. Some of the cases in this state, in which relief has been denied, are forcible illust-ratioiis of the necessity of the rule here adopted. The adoption of the rule is essential to the complete administration of justice, will tend to protect the courts and the family from fraud and wrong, and will serve as a warning to those inclined to practice such fraud.”

The doctrine of this case has’ been followed in' the later case of Nicholson v. Nicholson, 113 Ind. 131, 15 N. E. 223. The case of O’Connell v. O’Connell, 10 Neb. 390, 6 N. W. 467, is also relied on. That the force of this case as an authority had been weakened by the subsequent decisions of that court, was insinuated but not discussed by .the court in Smithson v. Smithson, 37 Neb. 535, 56 N. W. 300, 40 Am. St. 504. It is unnecessary to review other cases cited by respondent and which only incidentally bear upon our discussion.

The reason for the better rule is aptly stated in Brown v. Brown, 58 N. Y. 609, wherein the chapter of the code, allowing vacation of decrees and judgments and the power of the court thereunder was clearly defined.

“Under that provision [in relation to opening judgments] the period of seven years must elapse before a judgment founded on publication can be reposed upon as final. It is obvious that such a provision is inappropriate to actions for divorce; they were therefore excepted from it. But the power which the courts had before the Code, over their own judgments and records, is not interfered with. It is not contended that section 135, or any other, takes away the power of the court to open a judgment of divorce entered upon default, where the summons has been personally served, and it would indeed be an anomaly to give so much greater effect to one entered upon publication that while the former could be opened by the exercise of the discretionary power of the court, the latter would be beyond the reach of any such power. We do not think that it was the intention of the act to produce any. such unreasonable result.”

The rule that such a decree may be vacated is sustained by the following authorities: Edson v. Edson, 108 Mass. 590, 11 Am. Rep. 393; Adams v. Adams, 51 N. H. 388, 12 Am. Dec. 134; Body’s Appeal, 38 Pa. St. 241; Zoellner v. Zoellner, 46 Mich. 511, 9 N. W. 831; Helmes v. Helmes, 24 Misc. Rep. 125, 52 N. Y. Supp. 734; Hamilton v. Hamilton, 29 App. Div. 331, 51 N. Y. Supp. 365; Elmgren v. Elmgren, 25 R. I. 177; Medina v. Medina, 22 Colo. 146, 43 Pac. 1001; Van Derveer v. Van Derveer, 30 W. Law B. 96, 11 Ohio Dec. (reprint) 828; Womack v. Womack, 73 Ark. 281, 83 S. W. 937, 1136; Bishop, Marriage & Divorce, 1556; Stewart, Marriage & Divorce, 422; and, in the opinion of the writer, by the case of Winstone v. Winstone, 40 Wash. 272, 82 Pac. 268, as well as the Metler and McDonald cases.

It is contended, however, that, the lower court having had complete jurisdiction, a mere offer, to prove that the decree was obtained as the result of perjured testimony and was fraudulently obtained is insufficient. Whatever the rule may be when the divorce proceeding is collaterally inquired into, it must be remembered that this is a direct application, timely, and diligently prosecuted, and no harm can result to any innocent person by a further inquiry as to the justice of respondent’s cause.

Aside from these considerations, the interest of the public in all actions for divorce is such that a policy has grown up in accord with enlightened sentiment to discourage and deny divorces unless claimed upon proper grounds and sustained by an honest disclosure of the facts. There is much in the record that prompts further inquiry. The complaint did not, as the statute (Bal. Code, § 5730; P. C. § 4641), expressly provides, distinctly state the causes relied upon. Although the proceeding must haye borne the earmarks of a divorce by consent or collusion, the prosecuting attorney was not called upon to inquire into the merits of the cause. It was in effect, notwithstanding the record, a decree by default. The fact that respondent, as it now appears, had prompted-the whole proceeding, including the employment of an attorney who was willing to accept the questionable agency of appearing for the defendant, through the intervention of the plaintiff whose interest was hostile, was in itself, when promptly disavowed, a showing of fraud upon the law and upon the court calling for further inquiry. The demurrer admits the conduct of respondent prior to and subsequent to the entry of the decree; and while ordinarily the plea of coercion or duress would not be heard upon the facts, alleged, when we consider the years of intimate relationship existing between these parties, the trust and confidence inspired by mutual interest in the rearing of children, it is not for us to say in this proceeding that appellant was not the victim of a well-founded dread that respondent, the father of her children, would take his life unless she submitted to his demand. His after-declaration that he intended to marry another was enough to disabuse her mind, make the cowardice of his silly threat stand naked and revealed, and recall the fact that her right had been taken from her without a hearing. It is not, as counsel says, an indication that she has allowed her “jealous and spiteful disposition to overcome her better judgment.” In it we see the way of woman, and when it appears that she has been deprived of her right by a pretense that prevented a full inquiry, the interest of the public as well as that of the wife intervenes and demands a rehearing upon the full merits of the cause.

“Where the unsuccessful party has been prevented from exhibiting fully his case, by fraud or deception practiced on him by his opponent, as by keeping him away from court, a false promise of compromise; . . . these, and similar cases which show that there has never been a real contest in the trial or hearing of the case, are reasons for which a new suit may be sustained to set aside and annul the former judgment or decree, and open the case for a new and fair hearing.” United States v. Throckmorton, 98 U. S. 61, 25 L. Ed. 93.

The order of the lower court sustaining the demurrer to appellant’s petition and dismissing her from the court is reversed, and the cause remanded with instructions to the lower court to entertain her petition for the vacation of the decree.

Rudkin, C. J., Fullerton, Gose, and Morris, JJ., concur.  