Opinion
5 Div. 292.
May 18, 1939. Rehearing Denied June 22, 1939.
Appeal from Circuit Court, Tallapoosa County; Will O. Walton, Judge.
Wilbanks Wilbanks, of Dadeville, for appellant.
Where witness was fraudulently induced to sign testimony used in divorce proceeding, which testimony witness knew to be false but signed not knowing that matters were contained in the writing other than those read to witness, there is fraud on the court in the procurement of the decree requiring the decree to be set aside. Miller v. Miller, 234 Ala. 453, 175 So. 284. Where testimony was taken by deposition and not given in the presence of the Judge, no presumption in favor of the conclusion of the trial court will be indulged. Hodge v. Joy, 207 Ala. 198, 92 So. 171.
Pruet Glass, of Ashland, for appellee.
The fraud for which chancery will set aside a judgment must be fraud in the very act of procuring judgment or in its concoction and must be extrinsic or collateral to the matter which was tried and determined by the judgment in question. Miller v. Miller, 234 Ala. 453, 175 So. 284; Sims v. Riggins, 201 Ala. 99, 77 So. 393; Hogan v. Scott, 186 Ala. 310, 65 So. 209; De Sota C. M. D. Co. v. Hill, 194 Ala. 537, 69 So. 948; Ex parte Kay, 215 Ala. 569, 112 So. 147. To impeach a final decree of a court of competent jurisdiction there must be shown actual fraud in its procurement. McDonald v. Pearson, 114 Ala. 630, 643, 21 So. 534; Graves v. Brittingham, 209 Ala. 147, 95 So. 542.
The bill in this case was filed by appellant and seeks to set aside a decree of divorce on the ground of fraud in its procurement.
The equity of it was sustained by this Court on former appeal — 234 Ala. 453, 175 So. 284, 286 — to the extent "that there was [alleged to have been] imposition upon the court in representing to the court testimony which in fact was not given by the witness" Gorman Lambert. This was predicated upon allegations in the bill that the decree of divorce was procured by fraud, in that one of the witnesses on whose testimony it was rendered did not appear before the commissioner and swear to his alleged testimony, but that he was handed a piece of paper and asked to sign it as evidence, and that it was said to be entirely different from what it purports to be, and that he signed without reading it and without knowing that it contained matter as it purports, corroborating the evidence given by complainant in that case.
An issue was made in the instant case as to such allegations concerning the evidence of that witness. In that case this complainant was served personally with notice as respondent and knew what it was for, but made no defense and a decree pro confesso was entered against her. A commissioner was appointed to take the testimony. If there was any irregularity in doing so, the decree is not now subject to be set aside by a bill of review on that account, Jones v. Henderson, 228 Ala. 273, 153 So. 214(14); 34 Corpus Juris 450, 451, section 707, and this Court in the former appeal did not hold otherwise.
Neither is it sufficient to show that the evidence on which the decree was rendered is false and perjured, and that the ground of divorce as alleged was not proven by credible evidence. 16 Corpus Juris 256, section 415; 21 Corpus Juris 778, note 72; Estes v. Timmons, 199 U.S. 391, 26 S.Ct. 85, 50 L.Ed. 241; United State v. Throckmorton, 98 U.S. 61, 25 L.Ed. 93. See Hogan v. Scott, 186 Ala. 310, at page 314, 65 So. 209, not overruled on that point in Keenum v. Dodson, 212 Ala. 146, 102 So. 230.
But if, as alleged in the bill, pretended evidence was offered which purported to be given by a witness which he did not give and complainant procured a decree aided by it in which he participated, it is a fraud in procuring the decree and a court of equity, by bill in the nature of one of review, will set it aside, as was held on former appeal.
On the issue thus made the witness Gorman Lambert testified that he was in fact examined and testified as the commissioner certified. So also did the commissioner, the complainant and his attorney, and there was nothing to the contrary except the effort made by this complainant to impeach Gorman Lambert, who was her witness, by an affidavit, which he says he made but was drunk and did not understand its contents. The trial court found that the proof of fraud was not sufficient to sustain it, and denied relief. In this we concur.
Affirmed.
ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.