dissenting.
The majority opinion in this case is most unfortunate because it sets aside a divorce decree granted by a Court of competent jurisdiction and which has been of record for ten years; and all this in spite of the fact that the movant has made no showing of a meritorious defense to the divorce action.
Mr. Fair obtained a divorce decree in Crittenden County on October 16, 1950. Mrs. Fair filed the present proceeding on April 9, 1959 to set aside the 1950 divorce decree. She made two claims: (a) Mr. Fair was not a bona fide resident of Crittenden County when he obtained the divorce decree; and (b) Mr. Fair fraudulently concealed from her the pendency of the divorce proceedings by failing to give her best known address to the Court’s attorney ad litem.1
Now let us take up these two attacks made by Mrs. Fair on the 1950 divorce decree.
A. Mr. Fair’s Residence. The Trial Court in the present case found that the 1950 Chancery Court was without jurisdiction because Mr. Fair was not a bona fide resident of Crittenden County in 1950. In my opinion, the Trial Court in the present case was in error in so holding; and the majority of this Court does not rest the affirmance on that finding. The depositions in the 1950 divorce case are in the record before us; and these depositions disclose the following questions were asked Mr. Fair when his deposition was taken on the 13th of October, 1950:
“Q. Please state your name, age, and place of residence.
A. Mark A. Fair, lawful age, West Memphis, Ark.
Q. How long have you lived in West Memphis ?
A. Since June 19,1950. . .
Q. At the time you commenced your residence in West Memphis, was it your intention to reside here permanently or indefinitely?
A. It was.
Q. Is that now your intention?
A. It is____”
Mrs. Ben Melson was one of the witnesses whose deposition was also taken on October 13, 1950; and she testified as to Mr. Fair’s residence as follows:
‘ ‘ Q. Bo you know the Plaintiff in this case, Mark L. Fair?
A. Yes, I have known Mr. Fair since June 19,1950, when he rented a room at my hotel here in West Memphis.
Q. Where does he now reside?
A. In West Memphis. ’ ’
Thus, the question of Mr. Fair’s residence was before the Court in 1950; and in the decree the Chancellor, Hon. Francis Cherry, made this specific finding:
‘ ‘ That the Plaintiff is now and has been for more than three months a resident of Crittenden County, Arkansas; . ..”
In Jamieson v. Jamieson, 223 Ark. 845, 268 S. W. 2d 881, a contention was made that the person obtaining the divorce was not a bona fide resident2 at the time the decree was granted; and in denying the claim in that case we said:
“ ‘The law is settled that the fraud which entitles a party to impeach a judgment must be fraud extrinsic of the matter tried in the cause, and does not consist of any false or fraudulent act or testimony the truth of which was or might have been in issue in the proceeding before the court which resulted in the judgment assailed.’ ”3
The same rule applies here, and even stronger, because in the case at bar Mrs. Fair, in testifying before the Court in the present case in 1960, said of Mr. Fair’s residence in 1950:
‘ ‘ Q. You allege in your complaint that Mr. Fair was a non-resident of the State of Arkansas at the time this divorce decree was granted to him?
A. Yes, sir.
Q. Now how do you know that or do you know it?
A. Well, I don’t know.
Q. You don’t know ?
A. No.”
With all this evidence before this Court, the majority, by failing to mention the matter of Mr. Fair’s residence in 1950, correctly refused to rest its present holding on any claim that Mr. Fair was a non-resident of Crittenden County, Arkansas when he obtained his divorce in 1950; and that issue, therefore, passes out of this case and we come to the next attack on the 1950 divorce decree.
B. Fraud on Mrs. Fair. The majority is basing the affirmance of the Chancery decree on the theory that Mr. Fair fraudulently concealed from the Court and the attorney ad litem the address of Mrs. Fair. There is no showing that Mr. Fair knew any address for Mrs. Fair other than the one that he gave. The report of the attorney ad litem in the 1950 divorce case is in the record now before us, and the attorney ad litem says in part:
“That on August 19, 1950, he addressed two letters to the Defendant, Mrs. Nancy Fair, 171 Merton Street, Memphis, Tennessee, and Mrs. Nancy Fair, c/o G-eneral Delivery, Vicksburg, Mississippi; that both of said letters were returned marked “unclaimed.”
The affidavit for warning order was duly made in the 1950 case, and the decree finds that the warning order was duly published. In the 1960 case Mrs. Fair claimed that she had a post office box in her maiden name in Vicksburg, Mississippi. The letter was sent by the attorney ad litem to the general delivery in Vicksburg, Mississippi. If Mr. Fair had wanted to conceal the divorce from Mrs. Fair, it seems that he would have given her address as some city other than Vicksburg, Mississippi, because the 1950 United States census shows that Vicksburg at that time was a city of only 27,948 population; and in 1940 the population was 24,460. Furthermore, Mr. Fair gave Mrs. Fair’s Memphis address as 171 Merton Street, which was a place they had formerly owned and which was only two doors from where they had lived at one time. If he was trying to conceal the divorce suit from her, he went dangerously close to letting her know about it by giving such addresses. Mrs. Fair said that she did not know Mr. Fair’s address. How could she expect him to know her address?
In Alsupp v. Alsupp, 199 Ark. 130, 132 S. W. 2d 813, the husband in obtaining a divorce had given the wife’s address as Nashville, Tennessee, c/o the Sheriff’s Office of Davidson County. After the divorce decree was granted, the wife brought suit to set the divorce aside on the claim that the husband had fraudulently concealed from the Court her address, and had thereby kept her from knowing of the suit. This Court held that under the facts and circumstances in that case the address given for Mrs. Al-supp was a good address. The evidence in the case at bar is just as strong to support the address given by Mr. Fair as was the address given in the Alsupp case; and so I conclude that the Court was in error in holding that Mrs. Fair established that Mr. Fair fraudulently concealed her address.
There is another reason for my dissent, and that is the failure of Mrs. Fair in her present suit to allege a meritorious defense to the divorce case or to claim that she was the injured party. In Alsupp v. Alsupp, supra, we said it was essential that a person seeking to set aside a divorce allege facts sufficient to show a meritorious defense. That has been our rule in Arkansas. In the present case, the majority says that Mrs. Fair could not allege a meritorious defense because they had been separated for more than three years without cohabitation, which is the seventh ground for divorce under § 34-1202, Ark. Stats. I earnestly submit that the burden was on Mrs. Fair to show that she was the injured party in this suit in which she is seeking to set aside the divorce so that she can get some property rights. She is not interested in the divorce now for the purpose of settling her marital status, because Mr. Fair is dead. She is interested in setting aside the divorce only in order to get property rights. In failing to claim that she was the injured party, she has lost her chance to claim property rights. Secton 34-1202, Ark. Stats, in the seventh ground for divorce, says, ‘ ‘... and the question of who is the injured party shall be considered only in cases wherein by the pleadings the wife seeks either alimony under Section 34-1211, Arkansas Statutes 1947, or a division of property under Section 34-1214, Arkansas Statutes 1947, as hereby amended, or both. ’ ’
In her present complaint to set aside the divorce decree, Mrs. Fair has this as her prayer:
“WHEREFORE, the Plaintiff prays that the Decree of Divorce granted to the said Mark Lee Fair by this Court be set aside, vacated, and declared null and void ab initio inasmuch as the Court proceeded without jurisdiction in granting said Decree because of fraud practiced by the said Mark Lee Fair upon the Plaintiff and upon the Court and that the Court grant to the Plaintiff the recovery of her costs in this action and all other proper legal and equitable relief.”
She failed to pray for property rights and I think that such failure is fatal to her case.
There is also the matter of laches, which I fhi-nTr is a bar to Mrs. Fair. Mrs. Fair testified that she went to Vicksburg to stay with her mother in 1942 or 1943 and that she and Mr. Fair never lived together thereafter. She saw him when he came to the bowling alley, but she made no effort to keep in touch with him. From 1943 to 1959 Mrs. Fair went her way and left Mr. Fair to go his way. I think a wife who goes off and leaves her husband for fifteen years is in poor grace to claim that she can pick Mm up when she gets ready. Husbands are not like chattels that can be thrown down and left until the owner is ready to resume possession. When a wife goes off and leaves her husband for fifteen years I think she is guilty of laches and cannot come in after his death and seek to set aside a divorce.
There is not the slightest indication that either Mr. Fair’s attorney in the divorce action or the attorney ad litem was guilty of any impropriety of any kind or guilty of any conduct unbecoming a lawyer.
At the time the Fair divorce decree was granted in 1950, the case of Cassen v. Cassen, 211 Ark. 582, 201 S. W. 2d 585, was the law; and bona fide residence (He., domicile) was the requirement. Later, the Legislature by Act 36 of 1957 eliminated the bona fide residence (domicile) requirement; and the Legislative enactment was sustained in Wheat v. Wheat, 229 Ark. 842, 318 S. W. 2d 793. But Mr. Fair’s testimony in the 1950 divorce case met the requirements of the Cassen case.
To the same effect see also Williams v. Williams, 224 Ark. 949, 277 S. W. 2d 77.