
    James Roland FOSTER, Complainant-Appellant, v. Juanita Hoover FOSTER, Defendant-Appellee.
    No. 47459.
    Supreme Court of Mississippi.
    April 1, 1974.
    Sekul, Hornsby, Wallace & Blessey, Biloxi, for complainant-appellant.
    Billy F. Brown, Biloxi, for defendant-appellee.
   PATTERSON, Justice:

This is an appeal by James Roland Foster from a decree of the Chancery Court of the Second Judicial District of Harrison County wherein a general demurrer to the bill of complaint was sustained. The complainant, being aggrieved, argues on appeal that his bill of complaint did state a cause of action and that the trial court erred in sustaining the demurrer. . . *

The complaint, in the nature of a bill of review, sought to invalidate a divorce decree obtained by Mrs. Juanita Foster, appellant’s wife, on September 30, 1971. The complainant alleged in the bill that the divorce was the result of fraud practiced upon the court and upon the appellant- by Mrs. Foster.

One of the allegations was that the appellant was served with process in the divorce suit at a time when he and his wife were living together and that she informed him that she would take no further steps '-to obtain a divorce nor would there be any divorce until he returned from military duty in Vietnam, whereupon he destroyed the summons.

A further allegation is made that upon his return from overseas service he remained in the home with his wife and family from September 26, 1971, until the divorce on September 30, 1971, without being informed by his wife that the suit had been set for trial. On the basis of these allegations he avers that the divorce was fraudulently obtained since he did not have his day in court.

The trial court’s theory in sustaining the demurrer was that the appellant had been personally served with process in the divorce suit and therefore could not challenge it as being the result of fraud.

In our opinion there are adequate, well-pled allegations of fact, admitted by the demurrer, to state a cause of action in the nature of a bill of review for fraud. Taft v. Taft, 252 Miss. 204, 172 So.2d 403 (1965). We therefore are of the opinion that the trial court erred in sustaining the demurrer.

Reversed and remanded.

GILLESPIE, C. J., and INZER, SMITH and SUGG, JJ., concur.  