
    H. WEBSTER FOXWELL vs. HATTIE M. FOXWELL.
    
      Decrees: striking out; after enrollment; fraud and surprise. Divorce proceedings: suppression of facts.
    
    Where process has been regularly served upon t.he defendant and he fails to appear and make defense, and a judgment is regularly entered against him, a strong case must be presented to justify the Court in striking out the judgment after the lapse of the term, or the enrollment of the decree; and the Court will not interfere with the judgment in such a case unless the facts produced clearly establish fraud, deceit, surprise or irregularity in obtaining the same, and show that the defendant has acted liona fide and with reasonable diligence in making the application. p. 272
    In general, after the enrollment cf a decree, in the absence of fraud, surprise or irregularity, an error in the decree will not be corrected, or a rehearing granted, upon a mere petition; the proper form of proceeding in such a case is by a bill of review, or an original bill for fraud; but the procedure may be by petition when the case was not heard on its merits, and where, it is alleged that the decree was entered by mistake or surprise, or under circumstances which satisfy the Court, in the exercise of sound discretion, that the enrollment ought to be discharged and the decree set aside. p. 273
    The reasons for permitting the setting aside of a decree entered by mistake, surprise, etc., exist more strongly in divorce proceedings than in other cases. p. 273
    In divorce proceedings, which are often not contested, and where collusion may exist between the parties, the public has a peculiar interest which is in the care of the tribunal before which the proceedings are pending. pp. 273-274
    A decree of divorce a vinculo matrimonii by default was obtained against a wife through surprise; a petition, filed 'after the decree was enrolled and after the term, alleged that the decree was obtained by the suppression and concealment of facts concerning a former ease and a decree between the parties, as to which the Court had no knowledge, and prayed that the case might be reopened and the decree set aside'. Held that, under the circumstances, it was proper that the relief be granted. p. 274
    
      Decided January 14th, 1914.
    
    Appeal from the Circuit Court FTo. 2 of Baltimore City. (GrORTER, J.)
    .The facts are stated in the opinion of the Court.
    The cause was argued before Boyd, C. J., Burke, Thomas, Pattisqn, Uruer and Stockbridge, JJ.
    
      James Fluegel (with O’Mara & Angelmier, on the brief), for the appellant.
    Under all the •authorities, the appellee was estopped from attacking the decree at the time her petition was filed, as such procedure, if sustained, would lead to endless confusion and defeat the stability of any decree. Miller's Equity, page 362, section 292, and cases cited; 38 L. R. A. (New Series), pp. 220.
    The appellee fails to prove the very serious allegations contained in her petition; and she was guilty of gross laches in pmrsuing her remedy of appeal, or of moving to strike out the decree before enrollment, after she had notice thereof on July 19, 1911, and consequently, since there was no fraud, legal surprise or mistake, the decree of divorce in favor of the appellant must stand. See divorce case of Gechter v. Gechter, 51 Md. 187; Rusk v. Lynch, 54 Md. 636 on page 640; Herbert v. Rowles, 30 Md. 271, on page 277; Oliver v. Palmer, 11 G. & J. 137; Burch v. Scott, 1 G. & J. 393; Barry v. Barry, 1 Md. Ch. 20.
    The universal rule is that there must be an end of litigation somewhere, and that every man must have his day in Court. When that opportunity has been given him, he must make his defense, and if he is not satisfied with the result of the litigation he must appeal within a certain limited time — see Maryland Steel Co. v. Marney, 91 Md. 360, on pages 375 and 376 — and failing therein, the decree is final forever.
    To this rule there is the exception that if the defendant lias been disabled from making any defense, without any fault on his own piart contributing thereto, by any act of the plaintiff, causing the decree to be entered by mistake, or as the result of his fraud, and taking the defendant by surprise so that the opportunity to pass on the real issue was lost through the design of the plaintiff, such a decree based on such fraud and mistake, is one that the Court may vacate upon such facts being shown to it thereafter. In this case the pdaintiff did nothing directly or indirectly to disarm the appellee and to prevent her from making any defense she might choose to make in the cause. Being the mother of three children, the plaintiff did not want to put the stigma of disgrace upon her and her children by offering proof of her adultery in the record, as long as there was no defense made to the allegation of abandonment by her. This is explained by Mr. Angelmeir in his testimony on pages 56 and 57 of the record. In Rust v. Lynch, 54 Md. 636, this Court decided that where the process has been regularly served upon the defendant, and he fails to appear and make his defense, and i udgment is rendered regularly against him, the Court will not interfere with such judgment, unless the facts produced establish “fraud, deceit, surprise or irregularity” in granting the same, and that the defendant has acted bona fide and with reasonable diligence in making the application.
    The only ground on which the appellee seeks to set aside the decree, while being herself guilty of willful negligence of an inexcusable character, or perhaps staying away from Court purposely and with design, while the ease was being prosecuted against her, is that she had some time before that obtained a partial divorce from the appellant in another Court (Circuit Court), and that the appellant had failed to state that fact to .the Court- before obtaining his decree.
    It is submitted that such prior decree was a matter of defense only, and had nothing to do with the plaintiff’s case. There was no duty cast upon Mr. Foxwell to refer to the same in any way in his case. Anderson v. Cecil, 86 Md. 490, on page 493; Wharton on Evidence, Vol. 1, 3rd Ed. (1888), sec. 326, and cases cited.
    
      Lewis Hochheimer (with whom was Joseph W. Clisham, on the brief), for the appellee.
    1. An enrolled decree may bo vacated “whenever equity and justice demand it.” Miller, Eq., sec. 290; First Natl. Bank v. Eccleston, 48 Md. 145, 156.
    2. More particularly do courts act “freely and liberally” when there has been a decree pro confesso. 16 Cyc. 513; 1 Beach, Mod. Eq. Pr., sec. 202.
    3. Lapse of time or laches (not at- all conceded in this case) is immaterial. 2 Nelson, Div. & Sep., sec. 1056; Cun
      
      yngham v. Cunyngham, Ambler, 89 (Hardwicke, Ch.); First Natl. Bank v. Eccleston, supra.
    
    
      4r. In divorce suits, when there has been any suppression or concealment (with or without corrupt or ill design) of the existence of a prior decree (domestic or foreign) between the parties, the .case is always reopened. Mere failure to apprise the Court of such an impediment to the exercise of its jurisdiction constitutes a “fraud upon the Court,” vitiating the whole proceedings. Conway v. Beazley, 3 Hagg. Ec. (639, 643, S. C., 5 Eng. Ec. 242; Borden v. Fitsch, 15 Johns. 121, 145.
    5. The decree is vacated even when rights of others have intervened. 2 Nelson, Div. & Sep., sec. 1053.
    (i. Courts may sua sponte, at any stage of proceedings, without ceremony, dismiss the clandestine, suit. 11 Cyc. 701; Fisher v. Fisher, 93 Md. 314.
    7. As to the infant party, by the terms of the decree of the Circuit. Court a ward thereof, the decree here was wholly unauthorized. 2 Story, Eq. Jur., sec. 1353; Hill v. Hill, 49 Md. 450.
   Pattison, J.,

delivered the opinion of the Court.

'The petition in this case was filed by the appellee, Hattie M. Eoxwell, asking that the enrollment of the decree by which she was divorced a vinculo matrimonii from her husband, the appellant, and the care and custody of her three minor children awarded to him, be annulled and set aside.

As alleged in her petition, she, on the 17th day of April, 1907, filed a bill in ihe Circuit Court of Baltimore City against her husband, IT. Webster Eoxwell, charging him with abandonment and cruelty of treatment and praying for a divorce a mensa et thoro and other relief; that he, on the 12th day of May, 1908, after having been summoned in the proceedings instituted by her, filed his cross-bill praying for a divorce a vinculo matrimonii from the plaintiff on the ground of alleged adultery. The right of each to the relief prayed for in their respective bills was heard by Judge Heuisler, sitting in the Circuit Court, and on the 8th day of October, 1909, a decree was passed divorcing the plaintiff, Hattie M. Foxwell, a mensa eil thoro from the defendant, H. Webster Foxwell, and -awarding Esther Foxwell, the youngest of their infant children, to her care and custody, and ordering the defendant to pay unto the plaintiff the sum of twenty-five dollars per month for her maintenance and support. From this decree no appeal was taken and while it was still in force, as the petition alleges, the said H. Webster Foxwell and his solicitors, who were his solicitors in the divorce proceedings in which the above decree was passed, and to whom the matters above stated were well known and understood, fraudulently and corruptly contriving, designing and devising to defeat the operation of said decree and to obstruct the administration of justice, on the 6th day of April, 1911, filed their bill of complaint in the present suit— in the Circuit Court Ho. 2 — alleging that on the 15th day of January, 1906, the petitioner had abandoned and deserted him, the said H. Webster Foxwell, and further alleging, in vague terms, that she had committed the crime of adultery with divers men, to the plaintiff unknown, at various times and places, and praying for a divorce a vinculo matrimonii and for the custody of the infant Esther Foxwell, who, at such time, was in the care and custody of her mother, the petitioner, and a ward in Chancery.of said Circuit Court of Baltimore City under the provisions of the decree above mentioned. That said allegation of adultery was a “pure fiction, a wilful and corrupt falsehood, and that throughout the testimony taken in support of his bill, absolutely no attempt was made to introduce any evidence, even in the remotest degree, tending to establish it.” That “the cause was never heard upon its merits, there having been a decree pro confesso under which the ex parte testimony was taken” and upon which the final decree was passed. That the evidence of abandonment and desertion offered by him covered the period of time when she lived apart from him under the sanction of the decree in the former ease. That the fact of the passage of said decree by the Circuit Court of Baltimore City on the 8th day of October, 1909, “was wilfully, fraudulently and corruptly concealed and suppressed throughout the whole proceedings” before Judge Stump, sitting in Circuit Court Flo. 2, who subsequently on the 27th day of June, 1911, without knowledge of said proceedings and the decree granted therein, passed a decree divorcing the said LL Webster Foxwell a vinculo matrimonii from his wife, the petitioner, and granting to him the care and custody of all their infant children, including Esther Foxwell.

The petition further alleges that the passage of such decree was procured by H. Webster Foxwell in consequence of the fraud and imposition practised upon the plaintiff and the Court. That when summoned to appear before the Court to answer the bill in such divorce proceedings she, Hattie M. Foxwell, hastened from her home in a distant part of the State to the office of the Clerk of the Circuit Court FTo. 2 of Baltimore City,' where, as she alleges, she was informed by one supposedly in authority, that she need not come into Court until fm’ther notified, and that as she was without funds enabling her to remain in the city, or with which to employ counsel, she returned to the home of her father in St. Mary’s County, without having employed counsel, expecting to be further notified when her presence in the city was needed. That not until she received a letter from H. Webster Foxwell’s solicitor, dated July 19, 1911, enclosing a copy of the decree and threatening her with contempt proceedings if she did not give up her child confided to her by the Circuit Court of Baltimore City in the decree in the former case, did she know of the passage of said decree, and that “she was taken utterly by surprise” when she so heard of' it. That “immediately upon receipt of this letter she hastened to Baltimore and in her distress and poverty applied to Alexander H. Robertson, Esq., who, as she learned, was the Master in Chancery who had passed on the cases; it was through his good offices and advice that the counsel who now appears for her was interested in her behalf.”

The counsel so employed, as disclosed..by the record, on the 31st day of October, 1911, filed a petition, for and on her behalf, asking that the decree be stricken out. The defendant -filed a demurrer to this petition, which demurrer was sustained by an order of Judge Harlan, passed on the 15th day of March, 1912, in which order he refused to strike out the decree of June 27th, 1911, and dismissed the petition with costs, from which order an appeal was taken to this Court, Foxwell v. Foxwell, 118 Md. 471, and we decided that the averments in the appellant’s bill were too general and indefinite to warrant the Court in disturbing and vacating the enrollment of the decree, and the order of the Court below was affirmed, without prejudice to- the appellant, the appellee to pay the costs. In affirming the order of the lower Court, we stated that the petitioner might be entitled to- the relief prayed upon the institution of proper proceedings, and therefore held that she should not be precluded from presenting her case in a proper way, by filing an amended petition or original bill.

It was upon the return of the case to the Court below that the petition of the plaintiff was. filed and to which a demurrer was interposed and overruled; whereupon the defendant to the petition answered admitting the fact of the former proceedings in the Circuit Court and the passage of the decree therein, as alleged in the petition, but denied that he or his solicitors fraudulently or corruptly contrived, designed or devised to defeat the operation of the first mentioned decree, or to obstruct the administration of justice; and especially denied the alleged fraudulent suppression and concealment by himself and his solicitors of the former proceedings and the decree passed therein, averring that it was not his duty to bring such facts to the attention of the Court, because (1st) the charge of adultery contained in the bill gave to the Court jurisdiction over the subject matter of the suit, and (2nd) it. was the duty of the defendant, Hattie M. Foxwell, to plead the passage of said first decree in bar of the subsequent decree.

The answer also denied that the petitioner was without full information as to the pendency of said proceedings against her, and averred that after being summoned „as alleged in her petition, she conferred with one of the clerks in the office of the Clerk of the Circuit Court Ho. 2, as well as with an attorney, who was at the time present- and to whom she was directed by such clerk, both of whom, the answer alleges, undertook to direct her as to the course she should pursue in relation to such suit instituted against her; and in his answer ho denied that she acted with diligence and in good faith in seeking to have the decree set- aside, and charged her with laches and bad faith in relation thereto. There are other denials and allegations contained in the answer, hut we think them unimportant in the view we take of the case.

After heai’ing the evidence offered by the petitioner and respondent upon the issues joined by the petition and answer, the Court, Judge Gorter, then sitting’ in Circuit Court Ho. 2, on the 2nd day of May, 1913, passed an order or decree by which it was “ordered and adjudged that the enrollment, of said decree (the decree of June 27th, 1911) is hereby discharged and the decree vacated and set aside, the case to remain open as a pending case upon the plaintiff’s bill, with, leave to the defendant to answer the bill, and leave to both parties to proceed further in ordinary course.” The appeal is from this order.

The petitioner admits in her petition that she was summoned to appear and defend the suit instituted against her in Circuit Court Ho. 2, and that she, in obedience to such summons, appeared in the office of the clerk of said Court, and- in her testimony, stated that she was told by one of the clerks in said office that she had made a mistake as to the time when she should appear, that she was not to be there for fifteen or thirty days from that time; so she, being without money with which to pay her boárd in the city, returned to her home in St. Mary’s County, “thinking that she would have notice when the case would be tried.” In her testimony she also admitted talking with some attorney in the office of the clerk of said Court, to whom she had been directed by the above omentioned clerk in the office, and that she promised him to go to his office, but being thereafter told that he took only murder cases she did not go to see him. Who this attorney was is not disclosed by the record.

“Where the process has been regularly served upon the defendant and he fails to appear and make his defense and judgment is regularly entered against him, a strong case must be presented to justify the Court in striking out the judgment after the lapse of the term (or the enrollment of the decree); and the Court will not in any such case interfere with the judgment unless the facts produced clearly establish fraud, deceit, surprise or irregularity in obtaining the same, and the defendant has acted bona fide and with reasonable diligence in making the application.” Rust v. Lynch and Jackson, 54 Md. 640; Anderson v. Graff, 41 Md. 601; Sarlouis v. Firemen's Ins. Co., 45 Md. 241; Abell v. Simon, 49 Md. 318; Kemp & Buckey v. Cook and Ridgely, 18 Md. 130; Smith v. Black, 51 Md. 247.

By the application of this rule, the relief sought by the petitioner would have to be denied her upon her own admissions, if there were nothing more before the Court to be considered by it in determining the question presented.

It is conclusively shown by the record that the decree of June 27th, 1911, was passed by Judge Stump, sitting in Circuit Court No. 2, in absolute ignorance of the former divorce proceedings in the Circuit Court and of the decree of October 18th, 1909, passed therein by Judge .Heuisleu, divorcing the plaintiff, Hattie M. Foxwell, a mensa et thoro from her husband, H. Webster Foxwell, and awarding the care and custody of the infant child Esther Foxwell to her. AH of the facts, however, were fully known to the plaintiff, who withheld them from the Court in the prosecution of the second divorce proceedings.

“The general rule undoubtedly is that after the enrollment of a decree in chancery, in the absence of fraud, surprise or irregularity in its procurance, a substantial error in it will not be corrected or a rehearing of the case granted upon a mere petition, a bill of review or an original bill for fraud being the appropriate form of proceeding in such cases.” Primrose v. Wright, 102 Md. 105; Pfeltz v. Pfeltz, 1 Md. Ch. 455; Burch v. Scott, 1 G. & J. 393; Tomlinson v. McKaig, 5 Grill, 279; Thurston v. Devecmon, 30 Md. 217; Krone v. Linville, 31 Md. 146; Pfeaff v. Jones, 50 Md. 269; Rice v. Donald, 97 Md. 396.

But to this general rule there are certain well-defined exceptions which are equally well established, where the procedure may be by petition. These are in cases not heard on their merits and in which it is alleged that the decree was entered by mistake or surprise or under such circumstances as shall satisfy the Court in the exercise of a sound discretion, that the enrollment ought to be discharged and the decree set aside. Primrose v. Wright, supra; Herbert v. Rowles, 30 Md. 278; Bank v. Eccleston, 48 Md. 155; Pfeaff v. Jones, 50 Md. 296; Gechter v. Gechter, 51 Md. 187; Patterson v. Preston, 51 Md. 190; Downes v. Friel, 57 Md. 533.

In our judgment, this case clearly falls within these exceptions, and the result is that the order appealed from should bo affirmed.

The reason for permitting the setting aside or the annullment of decrees which are entered by mistake or surprise, oi under such circumstances as to satisfy the Court, in the exercise of a sound discretion, that the enrollment ought to be set a side, _ exists even more ■ strongly in divorce proceedings than in other cases to which the rule is applied. In divorce proceedings, which are often not contested and where collusion may exist between the parties, the public has a peculiar interest which, as was said in the case of Fisher v. Fisher, 95 Md. 319, “is in the care of the tribunal before which the proceedings are pending, and it will be astute in enforcing the policies and principles of the law, less by the suppression or perversion of important facts it may be made the medium of obtaining a decree to which neither of the parties is justly or legally entitled.”

In that case the parties had in a former case (Fisher v. Fisher, 93 Md. 398) been denied a divorce, as both, in the judgment of the Court, had violated their marital vows, and the Court in the 95th Md. case said: “No reference having been made to these proceedings in the pending case, and no reason having been assigned for the omission to do so, it was entirely proper for the judge to elicit, on his own motion, proof as to the identity of the parties, and it having been admitted that they were the same persons as in the former .case, the bill was properly dismissed.”

And so in this case, upon the same reasoning, it was, in our opinion, entirely Tight and proper for the Court to set aside the decree and re-open the case, upon learning of the former case and the decree passed therein, which facts were concealed and suppressed from him and of which he had no knowledge. These facts and circumstances were sufficient to satisfy the Court, in the exercise of a sound discretion, that the enrollment ought to have been discharged and the decree set aside. The decree of the lower Court will be affirmed.

Decree affirmed, with costs to the appellee.  