Upon the principles laid down in the authorities, this application must be denied. Adams v. Adams, 51 N.H. 397; Greene v. Greene, *Page 82 2 Gray 361; Edson v. Edson, 108 Mass. 598. In Greene v. Greene it was decided that a decree of divorce cannot be called in question or invalidated, on the ground of fraud in its procurement, in a separate and independent libel subsequently brought between the same parties, when it appears that the first decree was entered after due notice to the adverse party, followed by an adjudication upon evidence offered in support of the allegations in the libel.
In Edson v. Edson the decree of divorce was set aside; but it was upon the petition of the libellee, who had no notice of the pendency of the libel and no opportunity to be heard, but of which all knowledge was fraudulently kept from her, and of which the court had no actual jurisdiction, but only an apparent jurisdiction founded on a false allegation of domicile.
In Adams v. Adams, it was laid down that a judgment will not be avoided for fraud when the same question of fraud was tried in the original action; and in Tebbetts v. Tilton, 31 N.H. 287, it was held that fraud in a judgment might be shown by a party or a privy where it may be done without showing any participation in the fraud, and where it does not involve a reexamination of the merits of the case.
The fraud imputed to William H. Folsom is, that his testimony and that of his chief witness Follansby, his alleged paramour, on the former trial, "was grossly false in this, that they denied that they had committed adultery, and their testimony as well as that of many other of the witnesses of said Folsom was wholly untrue, and so the decree of the court aforesaid was obtained by fraud and perjury on the part of said Folsom and several of his witnesses." The gist of the complaint appears to be, that the parties charged with having committed adultery did not admit it. That Folsom answered to and opposed her former libel was notice to her that he denied the truth of the charge of adultery against him. She therefore had no reason to be surprised at his testimony. The question of perjury, whether he and his witnesses were testifying falsely, was one of the questions for the judge who tried the cause to pass upon, and, as his decision was against this libellant, he must have found that they did not commit perjury, and therefore the alleged fraud was not committed.
The libellant now asks for a new trial, upon the ground that she has discovered further testimony. But this would only be adding cumulative testimony upon the same issues tried before, and there is no rule of law that allows a new trial in a libel for divorce for this reason. The libellant was duly notified of the former trial, was present in person, and with able counsel and with witnesses, and the cause seems to have been fully tried upon its merits. To grant a new trial upon the ground of newly discovered evidence would introduce a practice that would result in reopening a large proportion of decrees for divorce, and also result in great confusion and uncertainty in the status of the parties and their children.
Upon the former trial both libels were heard together. Each party charged the other with having committed the crime of adultery. The *Page 83 finding of the court necessarily established the guilt of the wife upon this charge and the innocence of the husband. In the libel now pending, she does not charge her husband with fraud or perjury, or subornation of perjury, in the trial of his libel against her, but of her libel against him. So, if she should succeed upon a new hearing in proving her husband guilty of adultery, and if the evidence, as it did upon the former trial, should prove her guilty of the same charge, no divorce could be decreed to her; and, however strong a case she may make for a new hearing of her libel against him, there is nothing stated in the present libel that entitles her to a new hearing upon his libel against her.
Upon the questions of custody and alimony, a new hearing can be had in the court below if the petitioner desires it.
CUSHING, C. J. The petitioner, having been by a decree of this court divorced from her husband on his petition, and a divorce on her petition being at the same time denied, now petitions for a rehearing of those causes, and at the same time and in the same petition asks for a modification of the order in regard to custody of children and alimony made at the time of her divorce.
The defendant appears, and moves to dismiss the petition; and the simple question for the court is, whether there is enough alleged in the petition on which to found a decree, supposing it all to be admitted to be true.
In regard to the petition for further orders in the former divorce suit, there seems to be no doubt that this matter is within the jurisdiction of the court, and that new and further orders may be made at the discretion of the court.
As to the matter of the rehearing, the case of Adams v. Adams,51 N.H. 388, which was decided with great apparent care and deliberation, is the leading and sufficient authority.
The petition in that case alleged a fraudulent collusion, by which a service apparently sufficient in law was obtained without in fact coming at all to the knowledge of the libellee; and it was held that such fraud was sufficient ground for opening the matter, and for a rehearing. But the learned judge who delivered the opinion of the court was careful to say that it was not intended "to give any countenance whatever to the idea that there may be a retrial, merely, of a divorce suit, on the allegation of fraud." In the petition before us, the only fraud alleged is the perjury of witnesses at the trial; so that what is proposed appears to be merely a retrial of the case, and is precisely what, according to the case of Adams v. Adams, cannot be had.
It is true, the petition alleges that the petitioner was forced to trial under circumstances of hardship, her reasonable request for a continuance being denied. But there is no allegation that this denial was obtained by any fraud practised upon the court; so that, for ought that appears, the continuance was denied by the court in the reasonable and proper exercise of its discretion, and is a matter which cannot be inquired into here. *Page 84
The result is, that so much of the petition as claims a rehearing of the divorce cases must be dismissed. The petition may be amended by striking out all except what relates to a modification of the orders made in the former suit. On that part of the petition a hearing may be had, and such orders made as may be necessary and proper.
Petition dismissed as to so much as prays for a retrial of the former divorce suits.