dissenting.
The apparent equities in favor of Mrs. Fair make me reluctant to disagree with the majority opinion, but the latent dangers inherent therein compel me to do so.
The essence of the majority opinion, as I understand it, is the finding that Mark Fair defrauded the court in procuring the original divorce decree in that “he supplied his attorney and the attorney ad litem with an improper address as to the place of Mrs. Fair’s residence.” This being true the majority of course must be first convinced that Mr. Fair knew her correct address.
The decisive question therefore is: Does the evidence show (conclusively) that Mr. Fair deliberately supplied an improper address?
As I see it, the defect in the majority opinion is that it fails to point out that Mr. Fair knew Mrs. Fair’s address. I am aware of nothing in the record to show that he had such knowledge. If this is true any other conclusions reached by the majority must necessarily rest on conjecture and inferences. Such being the situation the Murphy case and the Lewis case, relied on so heavily by the majority, lose all convincing application. From the Murphy case we quote: “Thereafter the parties lived separate and apart in the City of St. Louis, but each knew the other’s address.” Again in that same case the court stated: “It is admitted that plaintiff furnished this address, and it is admitted also that he knew this was not the address of his wife. ’ ’ From the Lewis ease we quote: “When we consider that appellee was familiar with Missoula and knew the address of his wife’s parents, with whom she was actually living. ..” In the case under consideration we have nothing approaching that degree of certainty or knowledge on the part of Mr. Fair. Concededly it appears unlikely that Mr. Fair did not know his wife’s whereabouts since they both lived at times in the same state and city, but appellee’s own testimony proved conclusively that it could happen. Certainly Mr. Fair, who apparently was a substantial business man, was better known and easier to be found than was his wife, yet she admits that she could not locate Mr. Fair even though she made a determined effort to do so. Why then should this court assume that Mr. Fair was acting in bad faith and fraudulently when he supplied the two addresses mentioned by the majority. Why should we not assume that he supplied the best address available to him.
A solemn judgment of a court of record is the foundation upon which rest important property rights and intimate personal relationships, and courts should act cautiously before sweeping it away, particularly after a lapse of 10 years. The trial judge who rendered the original divorce decree in 1950 had much better opportunity to inquire into the matter of service than this court has at this late date. In that court decree the judge stated that he had given “careful consideration to plaintiff’s complaint in equity, proof of publication of warning order and the report of the attorney ad litem.” It is not questioned that Mr. Fair complied with all the provisions of the statute in securing proper service by warning order.
In the beginning I mentioned the “latent dangers inherent” in the majority opinion, and I believe they are real. Theoretically and actually it jeopardizes the happiness of thousands of homes and the ownership of untold millions of dollars in personal and real property where they have been established on this kind of service. The stability of such values should not rest upon what some court determines to be the state of mind of a litigant 10 years previously — that is, did he act honestly or fraudulently. As was said by this court many years ago in a similar situation in the case of Boynton v. Ashabranner, 75 Ark. 415, 88 S. W. 566, 88 S. W. 1011, 91 S. W. 20; “Any other view of the law would permit the retrial of the question whenever either party sees fit to tender the issue anew, and the final adjudications of the courts of competent jurisdiction would rest upon a slender thread.”