ON MOTION FOR REHEARING
Decided April 30, 1934
By THE COURTSubmitted on application of defendant in error for rehearing.
Two grounds .appear in the application:
First: Since this court has not questioned the jurisdiction of the court below but has given it an opportunity to examine certain alleged fraudulent acts of a deceased attorney. I claim as a protector of the reputation of these deceased attorneys that the mere statement of fraud is a conclusion and will not stand as against the demurrer of this defendant unless the facts constituting the fraud are specifically alleged.
Second: As this case is one involving public welfare and as counsel for plaintiff in error asserted in his oral argument before this court that he was not attempting to set aside the divorce, I think this court should have distinguished between the status of these parties and their partner*619ship holdings or contractual rights, and not set aside a divorce which was satisfactory to the parties. Where there is no love or affection it is futile to try by court order to rekindle it when the only motive as set forth by plaintiff is her desire for property and support. In conclusion I maintain that the petition is still demfirrable until it shows specifically the acts of fraud committed in the court below and by whom committed.
Respecting the first ground of the application, this court nor counsel gave no consideration to the petition as being based on fraud. The arguments, briefs and opinion of this court were predicated upon other legal aspects of the pleading. We are satisfied and have held, that, the petition does state a cause of action independent of any averment of fraud. It will be presumed in the absence of any proof to the contrary that anything which counsel for plaintiff in error did in the trial court was in good faith and yet it may not be binding upon the plaintiff in error.
The second proposition of the application seems to be based upon the theory that this court, had set aside the divorce decree with its incidental barring of the dower of plaintiff in error. Our action did not have such an effect, but merely requires the trial court to permit, the plaintiff in error to proceed upon her petition to which the demurrer was in'our judgment improperly sustained.
. The application of defendant in error for rehearing will, therefore, be denied.
HORNBECK, PJ, and BARNES, J, concur.