Opinion
6 Div. 391.
June 30, 1921. Rehearing Denied October 6, 1921.
Appeal from Circuit Court, Jefferson County; Hugh A. Locke, Judge.
Vaughan Silberman, of Birmingham, for appellant.
The bill was one of review, and required permission for filing. Section 3178, Code 1907; 2 Stew. P. 417; 51 Ala. 301; 94 Ala. 346, 10 So. 304; 84 Ala. 349, 4 So. 182; 39 Ala. 409; 49 Ala. 319. Some diligence is required in the prosecution of such a bill, and fraud is not sufficiently alleged. 202 Ala. 539, 81 So. 41, and cases there cited.
Lipscomb Altman, of Birmingham, for appellee.
This was an original bill in the nature of a bill for review, and required no consent for filing. 114 Ala. 430, 21 So. 952; 83 Ala. 225, 3 So. 622; 63 Ala. 363; Simm's Chan. Prac. § 634. The appellee was not guilty of laches. 189 Ala. 241, 66 So. 448; sections 3178, 4852, Code 1907. Sufficient fraud was alleged to vacate the decree. 186 Ala. 310, 65 So. 209; 98 U.S. 93, 25 L.Ed. 52; 61 Fla. 701, 55 So. 795; 114 Cal. 690, 46 P. 736; 54 Ala. 532; 62 Ala. 349; 75 Ala. 555; 81 Ala. 540, 1 So. 217, 60 Am. Rep. 175; 136 Ala. 505, 34 So. 836; 131 Ala. 606, 31 So. 94.
The bill of complaint here exhibited is not a bill of review, and is not subject to the requirement that the permission of the court must be obtained for its filing. See Murrell v. Smith, 51 Ala. 301, 305; Manegold v. Beavan, 189 Ala. 241, 66 So. 448.
This is an original bill in the nature of a bill of review, grounded upon fraud in the procurement of the decree which it seeks to annul. Hogan v. Scott, 186 Ala. 310, 65 So. 209.
It is a well-settled principle in the impeachment of judgments for fraud, accident, or mistake that the complaining party must not only show that the judgment was the result of such intervention, but also that the complaining party was, as to that result, free from fault or neglect. Sanders v. Fisher, 11 Ala. 812, 815; Waldrom v. Waldrom, 76 Ala. 285, 289; Stevens v. Hertzler, 114 Ala. 563, 22 So. 121, 124. A majority of the court are of the opinion that the bill here exhibited is fatally defective in not showing that the complainant made some reasonable effort to ascertain for herself the truth or falsity of her husband's representations, and that her passive acceptance of them as true, without inquiry or activity of any sort, was such fault and neglect as must bar her right to relief. It is therefore held that the demurrer should have been sustained as to this defect in the bill.
In so far as the bill relies upon the husband's alleged procurement and use of perjured testimony as charged in the fourth paragraph as a ground for relief against the decree of divorce, it is without equity. Hogan v. Scott, 186 Ala. 310, 65 So. 209; DeSoto Coal, etc., Co. v. Hill, 194 Ala. 537, 69 So. 948.
It appears that complainant was informed of the existence of the decree in September, 1919, and then learned for the first time of the fraud practiced upon her by her husband. This bill was filed in August, 1920, nearly one year later, and the demurrer presents the objection that complainant has been guilty of laches which should bar its prosecution, in the absence of any showing to explain and excuse her delay. We think it is clear, however, that the mere fact of such a delay does not require explanation, and is not prima facie a bar to the relief sought.
The fact that complainant appeared and petitioned the court in July, 1920, for permission to marry again, thereby impliedly recognizing the existence and validity of the decree, may have some potency as evidence when the cause is submitted for decree, but its effect, as a matter of law, is not presented by the demurrer, and cannot be now considered.
The decree of the circuit court will be reversed, and one will be here rendered sustaining the demurrer to the bill on the ground above indicated.
Reversed, rendered and remanded.
ANDERSON, C. J., and McCLELLAN, THOMAS, and MILLER, JJ., concur.
McCLELLAN, J., is of the opinion, also, that the representations and promises by the husband, presented as a basis for equitable relief against the decree in question, must be denied that effect in accordance with circuit court rule 14, providing that —
"No private agreement or consent between the parties or their attorneys, relating to the proceedings in any cause, shall be alleged or suggested by either against the other, unless the same be in writing, and signed by the party to be bound thereby."
See Brunnier v. Hill, 204 Ala. 403, 85 So. 691, and cases therein cited.
When, as here, a husband has instituted a suit for divorce, but continues to live with the respondent wife, and assures her that he does not wish to obtain a divorce, and that he will withdraw the suit, and afterwards that he has in fact withdrawn it, thereby lulling her into trustful inaction, and preventing her from appearing and contesting the rendition of a decree upon unfounded charges of marital misconduct, he would be guilty of such fraud in the procurement of the decree as would authorize its annulment by a court of equity. Nothing to the contrary appearing, the confidential relations of the parties would justify the wife in trusting to the honesty and good faith of her husband's assurances, and her failure to make independent investigation for herself as to the status of the divorce suit would not be evidence of negligence or fault on her part in suffering the wrongful decree.
On the face of the bill, which alone can be now considered, I think that the demurrer was, in this aspect, properly overruled.
SAYRE and GARDNER, JJ., concur in the dissenting views of SOMERVILLE, J.