
    Bay v. Bay et al.
    
      Husband secures divorce by fraud — Decree of divorce conclusive, •when — Wife may open up decree — As to her interest in husband’s property, when.
    
    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.
    (No. 13034 —
    Decided February 6, 1912.)
    Error to the Circuit Court of Putnam county.
    The defendant in error, Christian Bay, on the 20th day of May, 1909, filed in the court of common pleas of Putnam county, Ohio, a petition for divorce from the plaintiff in error, alleging that he was a bona fide resident of that county and had been a permanent resident of the state of Ohio for more than one year last past; and that he was married to Anna C. Bay, at Hart, in the county of Oceona, in the state of Michigan, on the 28th day of August, 1895; and that no children were born as the issue of such marriage; and he stated as the ground for divorce that the said Anna C. Bay had been wilfully absent from the plaintiff for more than eleven years last past and had wholly disregarded all marital duties; and praying for a divorce and other relief. The plaintiff filed an affidavit for publication of notice, in which it is alleged that the .residence and postoffice of said Anna C. Bay is Walkerville, Oceona county, Michigan, and for that reason service of summons and a copy of the petition cannot be made in this state, etc., and there was no service except by publication. On the 3d day of July, 1909, the court of common pleas granted the divorce as prayed, and further ordered, “that, by reason of the acts of aggression of the defendant, Anna C. Bay, and because of the transfer of the property interests to her by this plaintiff, and from the evidence herein, that the defendant be and she is excluded and forever barred from claiming or holding any estate or interest, either vested, inchoate, dower, or inheritance, or otherwise, in the real, personal, or mixed property of this plaintiff, now owned or held by him, or which he may hereafter acquire.” The said Christian Bay died in Lorain county, Ohio, on or about November the 5th, 1910, leaving a will, by the terms of which all his property was disposed of to other parties than the plaintiff in error. On the 24th of December, 1910, Anna C. Bay filed, in the court of common pleas of Putnam county, Ohio, her petition to set aside the decree and judgment aforesaid, and for leave to answer and have the case tried upon the facts which she alleged in an answer in the original case, tendered therewith. In that petition, she avers that Christian Bay was not, and never had been, a bona fide resident of the state of Ohio, or of Putnam county, and that the petitioner had no notice or knowledge of any kind of the pendency of said petition for divorce, until after the death of said Christian Bay, to-wit, on or about December the 16th, 1910. She alleged, in her answer, and amendment thereto, that she had faithfully complied with all the terms and conditions of the marriage contract upon her part, and that the said Christian Bay had neglected and refused to comply therewith on his part, and had been guilty of extreme cruelty toward her, and that he abandoned her, in the spring of 1900, in a helpless condition, wholly unprovided for; that he was then possessed of about twenty thousand dollars in cash and land; that about June the 7th, 1900, she had begun, in the court of common pleas of Wood county, Ohio, a suit for divorce and alimony; and by reason of false and fraudulent representations and inducements made to her by said Christian Bay, she had dismissed the said cause of action and no record was made thereof; that, as a part of the arrangement by which the said suit was dismissed by her, he entered into an agreement in writing with her to live separate and apart, and he was to pay her the sum of thirteen hundred dollars; and she averred that, relying upon the statements as to the amount of property possessed by him, and upon this written agreement, she dismissed her petition and returned to the state of Michigan; and shortly afterward the said Christian Bay came to her home, in Walkerville, Oceona county, Michigan, and desired to live and cohabit with her as his wife, and they did so live and cohabit together as husband and wife until about three years prior to the time of filing this answer. This answer was supported by two affidavits.
    On the hearing of this petition, in the court of common pleas, the said Anna C. Bay, to maintain the issues on her part, introduced her petition, her answer and her amendment to her answer, and the affidavits aforesaid, and also introduced and read to the court the appearance docket and papers in the case, which appear as part of the record in this case, together with certain exhibits, which are attached to the bill of exceptions. And thereupon the counsel for the said defendants in error herein moved the court to dismiss the petition and answer of the said Anna C. Bay, on the ground that said court had no jurisdiction to hear and determine the same. On consideration whereof, the court sustained the said motion and dismissed the petition of the plaintiff herein. The circuit court affirmed this ruling, and this proceeding is brought here to reverse the judgment of the said circuit court and court of common pleas.
    
      Mr. Benjamin F. James; Messrs. Bailey & Lea-sure; Mr. J. W. Smith; Mr. T. S. Gurney and Mr. C. B. Stevens, for plaintiff in error.
    Lest we becloud the issue which is sought to be made, and which it is our province to have this court determine, we herewith reiterate that there is but one question for this court to determine since it has determined that Ohio takes its place alongside of Missouri and subscribed to the doctrine tolerated in no other state, so far as we can discover, that public policy precludes any reconsideration of the reasons which required, in the mind of the trial court, a dissolution of the marriage contract, and that is: can a husband deprive his wife of her property rights gained by her through marriage with her and thrust upon her by the laws of where the marriage is consummated, as well as her marital rights, sometimes denominated “consortium,” by filing a petition and securing a divorce through fraud and perjured testimony in a court without jurisdiction of the parties and without any knowledge on the part of his wife?
    We do not believe that this court has ever answered this question in the affirmative.
    
      On the other hand, we believe from the date of the decision of Cox v. Cox, 19 Ohio St., 502, every decision of this court has been opposed to this proposition.
    And we submit that if under our practice a wife can procure alimony upon appeal in the circuit court after she has ceased to be a wife because of a divorce decree in the common pleas court prior to any appeal, there is certainly no reason why a widow cannot procure her property rights, whether it be called alimony, dower or otherwise in the same case, in the same court after death has done for her what the divorce court might have done — deprived her of her husband and severed connubial ties.
    In the case of Weidman v. Weidman, 57 Ohio St., 101, we find the court reviewing the authorities prior thereto and the distinction is drawn between the case wherein a divorce is decreed when the court has full jurisdiction of both the parties and the subject-matter, and the case wherein the court does not acquire jurisdiction over the defendant by personal service, and in the latter class of cases fall the following: Mansfield v. McIntyre, 10 Ohio, 28; Cox v. Cox, 20 Ohio St., 439; Woods v. Waddle, 44 Ohio St., 449.
    In line with the foregoing authorities we submit the following authorities, which may be considered advantageous for the reasoning which is contained within them and which we believe strengthens the reasoning which has been shown in the decisions above quoted. Fritz v. Fritz, 6 N. P., 258; Wellington v. Wellington, 7 W. L. B., 20; McGill v. Denting, 44 Ohio St., 645; Schradin 
      v. Schradin, 24 C. C., 647, 70 Ohio St., 489; Dittey, Recr., v. Ellifritz, 8 C. C., 278; Doerr v. Forsythe, Admx., 50 Ohio St., 726; Coffman, Admr., v. Finney, Admr., 65 Ohio St., 61.
    
      Mr. Datus R. Jones; Mr. Franklin P. Riegle; Messrs. Watts & Moore and Mr. Ray D. Avery, for defendants in error.
    It does not seem necessary to cite precedents in support of the proposition, “that a decree of divorce, when rendered by a court authorized to hear and determine such cases, is in this state, final and conclusive.” The following cases have often been cited: Bascom v. Bascom, 7 Ohio (pt. 2), 125; Laughery v. Laughery, 15 Ohio, 404; Tappan v. Tappan, 6 Ohio St., 64; Parish v. Parish, 9 Ohio St., 534; Neil v. Neil, 38 Ohio St., 558; Knapp v. Thomas, 39 Ohio St., 377; John v. John, 53 Ohio St., 656; Casler v. Bowen, 56 Ohio St., 761; Mulligan v. Mulligan, 82 Ohio St., 426.
    We believe the court has no more authority to modify the judgment determining the property matters, than to modify the decree of divorce. This is especially true in a case where the decree makes a final and permanent division of property. Law v. Law, 64 Ohio St., 369; Olney v. Watts, 43 Ohio St., 499.
    In causes for divorce and alimony, whatever contradictions may exist in the decisions from the courts of the several states, they arise from the fact that some courts have attempted to treat these suits as in the nature of actions in personam instead of in rem. Consideration of those decisions will not aid us in arriving at a correct conclusion upon the questions here involved for those courts now find their law in a state of hopeless confusion. Our Ohio courts have always consistently held these cases to be proceedings in rem and so holding, our decisions have been logical and consistent. Benner v. Benner, 63 Ohio St., 220; McGill v. Deming, 44 Ohio St., 657.
    While regarding the divorce and alimony proceedings as a cause in rem, our courts take jurisdiction of two things: 1. The status of the parties if both are before the court or of a party if only one is before the court — that is the marriage status. 2. The property of the parties or of a party before the court where the property is within the jurisdiction. The action is in no sense a personal action. Properly speaking, it has no parties for the court is acting only upon the res.
    
    The nature of these actions is best illustrated in suits to libel a vessel in admiralty proceedings, in the probating of wills, and in suits to establish status as in habeas corpus. Scott v. Hancock, 13 Mass., 162; Lessee of Pillsbury v. Dugan’s Admr., 9 Ohio, 117; Thompson v. Steamboat, 2 Ohio St., 26; Keating v. Spink, 3 Ohio St., 105; Pennoyer v. Neff, 95 U. S., 714; Solomon v. Solomon, 26 C. C., 307.
    The court is judge of its right to take jurisdiction. Lessee of Glover’s Heirs v. Ruffin, 6 Ohio, 255; Solomon v. Solomon, supra; Lessee of Pillsbury v. Dugan’s Admr., supra.
    
    The decree cannot be vacated for fraud. Michael v. Bank, 84 Ohio St., 370.
    
      We think that the holdings of the circuit court in Solomon v. Solomon, supra, and Casto v. Casto, 30 C. C., 96, to the effect that Section 5355, Revised Statutes (P. & A. Anno. G. C. § 11632), are not applicable to proceedings had under the chapter relating to divorce and alimony, are correct.
    We contend that our courts have no jurisdiction to hear or determine an application to. reopen a divorce case at a subsequent term, and, coupled with that proposition, is the further fact that the plaintiff in the divorce proceeding had died before any proceeding was brought to reopen the divorce case. Knapp v. Thomas, 39 Ohio St., 393; Woods v. Waddle, 44 Ohio St., 449; Coffman, Admr., v. Finney, Admr,, 65 Ohio St., 61.
    We shall not attempt to reconcile the decisions of all the other states with Ohio in reference to divorce and alimony causes for the reason that some have treated such causes as actions in personam instead of actions in rem. The courts of Ohio have uniformly held such causes to be actions in rem. 2 Bishop on Marriage, Divorce and Separation, Secs. 25, 37, 76; Petersine v. Thomas, 28 Ohio St., 595.
   Davis, C. J.

The relief which the plaintiff sought, by her petition to set aside the decree by the court of common pleas, was not to be let in to defend against the divorce. The marriage relation had already been dissolved by the death of the husband. What she complains of is that she has not had her day in court to be heard upon the adjustment of property rights and the division of property as between her and her late husband.

If this petition, and the answer to be filed in the original case 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 opiliion as follows: “We therefore feel compelled, though reluctantly, to hold that sound public policy in this class of cases, forbids us from setting aside a decree of divorce a vinculo, though obtained by fraud and false testimony, on an original bill filed at a subsequent term.” 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; Doerr v. Forsythe, Admx., 50 Ohio St., 726; Coffman, Admr., et al., v. Finney, Admr., et al., 65 Ohio St., 61; Hassaurek v. Markbreit, Admr., 68 Ohio St., 554. None of these cases is, in all its facts, like the one at bar; but through all of them there runs, clearly marked and broadly stated, the doctrine that the decree of divorce is immutable, whether obtained by fraud or not, yet that the judgment as to property rights is not conclusive unless both the parties had their day in court. In Doerr v. Forsythe, Admx., supra, this court said: “The decree of divorce granted in the state of Indiana, acted only on the marital relation between the parties, and did not affect, nor purport to affect the property rights of the wife, in the state of Ohio. * * * But if it were otherwise, as she had no opportunity to defend, all that can be claimed for that decree, is that it dissolved the marriage relation between the parties, and restored the husband to the status of an unmarried man. This the court could do; but, as it had no jurisdiction of the person of the wife, it was not competent to the Indiana court to affect such rights as she had acquired in the property of the husband under the laws of this state. Mansfield v. McIntyre, 10 Ohio, 27; McGill v. Deming, 44 Ohio St., 645.”

In Weidman v. Weidman, supra, the court said: “In cases where there is no jurisdiction of the person of one of the parties, there can be no adjudication in personam of the question of alimony; and therefore in such cases, while the divorce may be valid, the question of alimony remains unadjudicated, and the wife may, under proper circumstances, maintain an action for alimony.” And while we have this case in hand, we may as well make another quotation from it, which is pertinent to the present case, viz: “After an absolute divorce in an action in which the court had jurisdiction of both parties, she is no longer ‘the wife’ and does not come within the provisions of the statute. Strictly speaking, the same, is true in cases in which the divorce was obtained by the husband in an ex parte proceeding, but as the wife has not had her day in court as to alimony, nor as to her equitable interest in his property, this court, by a liberal construction in her favor, has allowed her in such cases to maintain a separate action against her divorced husband for the recovery of alimony, which • is in its nature an equitable allowance out of his property.” See further on this last proposition, Cox v. Cox, supra, and Woods v. Waddle, supra, opinion by Follett, J., pp. 456-457. Similar reasoning is applied to the cases of Coffman, Admr., v. Finney, Admr., supra, in which both the parties to the divorce proceedings were dead, and Mansfield v. McIntyre, supra, and McGill v. Deming, supra, in both of which cases the property right involved was dower.

The record in the divorce case shows that the only service on the defendant was a constructive notice by publication. But the affidavit for publication, sworn to by the plaintiff, gives the place of residence and postoffice address and gives it correctly. There was therefore no authority to give notice by publication. Section 5693, Revised Statutes; P. & A. Anno. G. C. § 11984. By the same section it is made the duty of the plaintiff to forthwith deposit in the postoffice, directed to the defendant, a summons and a copy of the petition. This does not appear to have been done; and since the defendant alleges in her petition to open up the judgment, and in her answer and the affidavits in support thereof, that she had neither notice nor knowledge of the pendency of the petition for divorce, until after the- death of her husband, she has a right to be heard upon all questions arising upon this alleged fraudulent judgment as to her rights in the property of Christian Bay.

The judgments of the circuit and court of common pleas are reversed and the cause is remanded for further proceedings.

Spear, Johnson and Donahue, JJ., concur.  