Peyton v. Peyton

White, J.

(concurring). The appellant by her complaint in this action seeks to set aside, on the ground of fraud in obtaining the same,, a decree ■of divorce obtained by the respondent from the *304appellant in 1885 in the territorial district court at Goldendale, in Klickitat county. It alleges facts which, if true, rendered the decree absolutely void. The appellant by ber complaint also seeks to set aside and annul, on the ground of fraud, certain judgments rendered by tbe district court at Spokane Kails in December, 1886. Tbe appellant by her complaint also seeks to have decreed to her sufficient money for her separate maintenance. The prayer of the complaint, in substance, is:

“Appellant prays judgment against respondent for maintenance, and that the court allow and decree her such sum or sums of money to be paid by him, at such time and times as the court shall deem proper, for her maintenance and support; and prays that the court by its judgment and decree declare and decree to' be void and of no force or effect tbe pretended decree of divorce and the said pretended stipulations and judgments hereinbefore mentioned, and for all proper relief.”

It is held in the opinion that this action is a collateral attack upon the decree of divorce. I do not assent to this. Ko demurrer was interposed to this complaint, and no motion was made requiring the appellant to separately state her causes of action. If there was eliminated from the complaint every allegation save those alleging facts as to the fraud in obtaining tbe decree of divorce, and tlie prayer of the complaint that, the court would adjudge such decree fraudulent, no one would contend that the complaint was not a complete bill in equity to set aside the decree on the ground of fraud. Courts of equity have inherent power to set aside void judgments and decrees obtained by fraud. A bill in equity for this purpose is an appropriate proceeding, and, when a judgment is sought to be annulled in this way, it has always been held to be a direct attack upon the judgment; and respectable authority to the contrary cannot be found in the books. *305Every one of tlie causes of action stated in the complaint, if they may be regarded as independent causes, calls for equitable relief. They could be properly joined in one bill. The majority opinion is based upon what is said in 1 Black, on Judgments, § 252, and Morrill v. MorrilL 20 Ore. 96 (25 Pac. 362, 11 L. R. A. 155, 23 Am. St. Rep. 95) ; and Kalb v. German Savings & Loan Society, 25 Wash. 349 (65 Pac. 559). The meaning of the text in Black will be better understood by a reference to the authorities cited by the author in its support.

Lee v. Kingsbury, 13 Tex. 68 (62 Am. Dec. 546), was a suit in trespass to try title. The defendant claimed under a mortgage foreclosure sale. On the trial, evidence was offered to show that the land, at the time the mortgage was executed, was homestead, and therefore that the mortgage was void, and therefore that the decree foreclosing same was void. It was clearly a collateral attack. It was held that the validity of the mortgage was the very question at issue, heard and determined in the foreclosure suit, and that the evidence attacking the foreclosure judgment upon that ground was not admissible in that suit. So in Sturgis v. Rogers, 26 Ind. 1, — suit on appeal bond, it was held that the judgment affirmed on appeal in the case in which the bond was given could not be assailed. So, in an action on a promissory note given in satisfaction of a judgment, it was held the validity of the judgment could not be attacked. Mitchell v. State Bank, 1 Scam. 526.

In these cases the judgment was attacked in'a subsequent suit collaterally, not for the purpose of having the judgment annulled, but merely for the purpose of defeating the action in the second suit. In these cases, had the attack been permitted, the judgments would not have been annulled, but the only result would have been the defeat of *306the second, action. These and similar cases illustrate the meaning of the quotation from Black, where it is said that if the action or proceeding has an independent purpose, and contemplates some other relief or result, although the overturning of the judgment may be important, or even necessary to its success, then the attack would be collateral, and show that the proposition as stated in his text, whether .correct or not, has no application here. But even that rule, as announced by Mr. Black, is confined to cases where the judgment was attacked upon the ground of error and irregularities, and has no application j>o judgments rendered without jurisdiction of the subject-matter or the parties. This is made clear hy other portions of the same section, quoted from by respondent, and authorities there cited, among which are: Penrose v. McKinzie, 116 Ind. 35 (18 N. E. 384), where it is held that the •owner of land may maintain a suit to annul a void judgment, so as to have the apparent lien upon his land created by such judgment removed, and that this is a direct, and not a collateral attack. And McCampbell v. Durst, 73 Tex. 410 (11 S. W. 380), where it was held that a suit by the vendee of the administrator to set aside certain judgments of the probate court, and to cancel deeds executed under such judgment, to remove same as a cloud upon plaintiff’s title, was a direct attack upon the judgment, and properly maintained. In that case the court said:

“These proceedings constitute a part of appellant’s claim and eventuate in the deeds, against both of which relief is directly sought in this suit. We think the suit is not collateral, but a direct proceeding to vacate the deeds,” etc.

Daniels v. Benedict, 50 Fed. 348, is an authority in point. There the widow brought suit in equity for partition, and to have allotted to her her share of the estate, .and also, to that end, to have annulled a fraudulent decree *307of divorce obtained against her by her husband a number of years prior to his death; setting out fully in her bill the marriage, the alleged divorce, and the facts rendering the decree of divorce fraudulent and void. A demurrer to the bill was overruled, the court holding that the suit was in all respects properly brought. In that case^ had the decree of divorce been valid, the widow would not have been entitled to partition of his estate, and hence she sought by her bill to have the decree of divorce annulled. If that was not a collateral attack, certainly the attack here is not collateral.

Morrill v. Morrill, 20 Ore. 96 (25 Pac. 362, 11 L. R. A. 155, 23 Am. St. Rep. 95), cited in the opinion, is not opposed to the view contended for by the appellant. That was a suit- to quiet title. The defendant claimed a portion of the lot under a judgment of partition had in a suit between him and the plaintiff, in which, admittedly, the court had jurisdiction both of the subject matter and of the parties. Defendant relied upon that judgment. Plaintiff, in her reply, sought- to attack it for fraud and irregularities. The court said:

“It is first important- to determine whether this is a direct or collateral attack on this decree. . . . The complaint contains no allegations concerning this decree, but the first mention thereof is in the answer, where defendant pleads it as an estoppel. The plaintiff then seeks to avoid its effect by averring in the reply matters which she claims are sufficient to- vitiate it. This is undoubtedly a collateral attack. It is an attempt to impeach the decree in a proceeding not instituted for the express purpose of annulling, correcting or modifying the decree:

And further on in the opinion says:

“As we have already said, this can not- be considered a direct attack upon this judgment. ISTo reference is made *308to the judgment in the complaint. No facts are alleged upon which a court could base a decree annulling the decree or judgment.”

The court there held the attack collateral, because it was not made in the complaint; because the suit was not brought for the purpose of having the decree annulled; because there was no allegation upon which any judgment could have been rendered annulling the decree.

But in the case at bar the attack is made in the complaint; the suit is brought for the purpose — the express purpose — of annulling the alleged decree of divorce and the other judgments; allegations were made in the complaint upon which a decree can be rendered annulling that decree and those judgments. Under the ruling, then, in Morrill v. Morrill, supra, the attack here upon the decree of divorce, as well as upon the judgments entered in December, 1886, is a direct and not a collateral attack. It will be observed that the suit, in Morrill v. Morrill was one to quiet title, and for that purpose it was sought to have the decree of partition annulled. But it is not suggested that the fact that the suit was also to quiet title would have made it any the less a direct attack had the attack been made in the copiplaint.

Kalb v. German Savings & Loan Society, supra, was a suit alleging tenancy in common and asking partition. It was met by answer setting up a judgment quieting title as against the plaintiff. The reply alleged facts to invalidate that judgment. We said:

“It will be readily observed that this is not an action to set aside the judgment in Drench v. Dennis, but one seeking to have Herbert Dennis, the defendant in that action, declared to have an interest in said property, notwithstanding a judgment declaring he has no interest. It is well, therefore, to determine at the outset whether this *309action is a direct or collateral attack upon tliat judgment. ISTo mention of tlie judgment in French, v. Dennis is mad© in the complaint herein. The answer, after denying all the allegations in the complaint, sets up the judgment as a bar to plaintiff’s right of recovery, even if he ever had any interest in the property. The reply, after denying' the allegations of the answer, sets out facts which plaintiff claims invalidated the said judgment.”

From this it is plain that we only intend to hold that the attack was not direct, hut collateral, because the attack was not made in the complaint; following in this Morrill v. Morrill, supra, and other cases announcing the same rule for the same reasons. But it is answered that it makes no difference whether the attack is made in the complaint or in the reply; that the test is whether the suit is brought to annul the judgment. We must not overlook the fact that the purpose of the suit is determined by the complaint, and not by the reply, — a purely defensive pleading. In Dormitzer v. German Savings & Loan Society, 23 Wash. 132 (62 Pac. 862), in passing upon a similar question, we said:

“The respondent claims that the complaint in this action is to foreclose the mortgages therein mentioned, and that the probate proceedings by which title to onedralf of the property in controversy passed from the minor heirs to F. M. Tull, under whom respondent claims, can not he questioned, because the same would be a collateral attack. The complaint in apt and specific allegations attacks directly the probate proceedings and the guardian deeds thereunder,” — and we overruled the contention.

The quotation from the Am. & Eng. Enc. Law to the effect that “any proceeding which is not instituted for the express purpose of annulling, correcting or modifying the judgment or enjoining its execution.” will not bear the construction put upon it in the opinion. “Express pur*310pose” does not mean “exclusive purpose,” and the complaint has for one of its purposes the -“express” purpose of annulling the decree. The facts in the complaint are stated as constituting one cause of action. It is immaterial whether the facts are stated as constituting several causes of action, or as one. Courts of equity should disregard all such technicalities. The object to be obtained under our system of pleadings is to avoid a multiplicity of suits. We have but recently held, in an opinion by Justice Dunbak, that the status of real estate owned by the husband and wife, and claimed to be community property, and which the wife claimed as her separate estate, could be determined in an action for separate maintenance. Branscheid v. Branscheid, 27 Wash. 368 (67 Pac. 812). We also' have recognized as a correct practice that, where the defendant denied the existence of a partnership in a bill brought for an accounting between alleged partners, the court could first determine as to the existence of the partnership) and after having determined that could direct an accounting. Bingham v. Keylor, 25 Wash. 156 (64 Pac. 942). So in the present case the court might have determined, on the allegation of the complaint, whether or not the decree of divorce was fraudulent, and then might have adjudged, on such determination, whether or not the appellant was entitled to separate maintenance. Tlio mere fact that the court has heard the entire case, without first determining whether or not the decree of divorce was void, is immaterial, as that can affect only the question of costs.

Por the foregoing reasons, I think the complaint is a direct attack upon the decree of divorce; that, in a direct attack, recitals in the judgment are not conclusive; and that want of jurisdiction may be brought to the attention *311of the court by facts outside of the record. Dane v. Daniel, ante, 155 (68 Pac. 446.)

The statute, § 5153, providing for setting aside a judgment for fraud within one year, is a concurrent remedy with the right to have such a judgment set aside by a bill in equity. The opinion seems to' hold that, if the fraud is discovered within the year after the rendition of the judgment, the statutory remedy alone must be pursued. I do not assent. Independent of any statute, the court has the inherent power, on motion, to set aside at any time a void judgment. Dane v. Daniel, supra.

Thirteen years before this action was brought, the appellant was fully informed as to the manner in which the decree of divorce was obtained. She knew the judgment was valid upon its face, and so far as disclosed in the judgment roll. She knew that rights adverse to her interest might be claimed under the judgment. She knew that, as the decree stood, it could be used as a defense to an action for separate maintenance. For thirteen years she stood by and acquiesced in the decree. She has been guilty of such laches as to now preclude her from instituting a suit in equity to set aside the decree. It should be allowed to stand for what it is worth. The appellant strenuously urges that the agreement between the respondent and appellant testified to by Mr. Graves and Mrs. Houghton, should be ignored, because contrary to public policy. Concede that it is against public policy; the law for that reason does not require that this whole matter be opened up at this late day. Public policy will be best subserved in this instance by leaving the appellant and respondent where they placed themselves hi 1S86.

“A court of equity,” said Lord Camden, “lias always refused its aid to stale- demands, where the party slept upon his rights, and acquiesced for a great length of time. *312Nothing can call forth this court into activity, but conscience, good faith and reasonable diligence; where these are wanting, the court is passive, and does nothing.” Speidel v. Henrick 120 U. S. 377, 387 (7 Sup. Ct. 610).

The business of this court is so crowded that time for tho consideration of other matters does not permit of a more extended statement of my reasons for coming to tins conclusions reached by me in this case. T therefore concur in the result.