DISSENTING OPINION.
WOODSON, J.This is a suit instituted by the plaintiff against the defendant in the circuit court of the city of St. Louis, to set aside a decree of divorce theretofore rendered by said court in a cause where the defendant here was the plaintiff there, and where the plaintiff here was the defendant there. A demurrer was filed to the plaintiff’s petition, and sustained by the court, and she declining to plead further, judgment was rendered in favor of the defendant, and the plaintiff appealed the cause to this court.
The facts, in so far as here material, are as follows:
John Dorranee, the defendant, a resident of Chariton county, Missouri, about the month of May, 1906, instituted in the circuit court of the city of St. Louis, a suit for divorce from his wife, Emma Dorranee, on the ground of desertion. The petition was in the ordinary statutory form, and duly sworn to by the plaintiff. Accompanying the petition, was an affidavit stating that the defendant had absented herself from her usual place of abode, and had so concealed herself that the ordinary process could not be served upon her, and prayed for an order of publication. The order was duly issued, and regularly published in a newspaper, published in the city of St. Louis, as required by law.
*661The defendant failed to appear, and in dne time a judgment by default was rendered in favor of the plaintiff, divorcing him from her.
After the lapse of about one and a half years, and after several terms of the court had also elapsed, the plaintiff brought this suit to set aside the decree of divorce, stating the foregoing facts, together with the following, as grounds therefor:
That she did not desert him; that she was only temporarily absent in Kansas City, at the time of the institution of the divorce suit, and that he knew that fact, and of her whereabouts; that she was the innocent and injured party, and that he was the guilty one; that he was guilty of adultery, and had committed a felony, by having a certain person impersonate her, and procuring a loan of $10,000 on her lands, secured by a deed of trust; that he was not a resident of St. Louis, and that he had procured the decree for divorce through fraud, etc.; and prayed to have it set aside and for naught held.
I. Counsel for appellant insists that the decree for divorce in favor of John Dorrance, obtained against their client, Emma Dorrance, is void, for the reason that she was not legally served with process, and therefore the circuit court of the city of St. Louis had no jurisdiction to hear and determine the cause.
There can be no doubt but what the circuit court of the city of St. Louis is a court of general jurisdiction, and has jurisdiction to hear and determine divorce cases. Nor can there be any question but what John Dorrance submitted himself to the. jurisdiction of that court by instituting therein said suit for divorce. [11 Cyc. 670, par. 3, and cases cited.] And the record shows that the order of publication against Emma Dorrance was duly issued and published as required by law.
*662None of the foregoing facts are disputed, but upon the contrary, are admitted or alleged to be true in the petition of the appellant, but the validity of those facts are challenged for three reasons:, (a) Because John Dorrance was not a resident of the city of St. Louis at the time of the institution of the divorce suit; (b) Because the defendant had not deserted her home, and concealed herself so that the ordinary process of law could not be served upon her; and (c) Because under those facts, the order of publication was void because the plaintiff was not a resident of St. Louis, and consequently she was not served with process.
We will briefly consider those three questions in the order stated.
(a) Conceding that John Dorrance was not a resident of the city of St. Louis, at the time he brought the divorce suit, nevertheless, when he voluntarily went there and instituted the suit for divorce, he submitted himself to the jurisdiction of that court. That is academic, and it would be a useless waste of time to cite authorities in support thereof. However, I will cite on well considered case upon this subject sustaining that proposition, and that is, Johnson v. Beazeley, 65 Mo. 250.
In that case", it was contended that letters of administration were granted in the wrong county, and for that reason it was insisted that the proceedings had in that court were void for want of jurisdiction. But the courts in that case, after deciding that the jurisdiction of the probate courts over “the administration of estates of deceased persons was general, exclusive and original,” etc., and their action on these subjects was entitled to the same weight as that of any other court of record, and was “ conclusive in all col-1 ateral proceedings ’ ’ held that: ££ When Higginbotham died, it became necessary to appoint an administrator of his estate. The probate court had to determine several questions of fact before making the appointment; *663among them, that Higginbotham was dead, that he resided and had a mansion house in the county where the court was asked to make the appointment, or that, when he died, he had no place of abode or mansion house, that he owned land in that county, and that it was the greater part of his land. Having a general jurisdiction over the subject-matter, and the law requiring the court to pass upon those questions, before granting letters of administration on his estate, it is to be exclusively presumed, in a collateral proceeding, that the court not only did so, but that it correctly passed upon them. To allow the heirs, or any one else, in a collateral proceeding to question the correctness of the judgment of the court, would so imperil the titles conveyed at administrator’s sales of lands that no prudent man would bid their value, and estates would.be sacrificed. Both public policy and the weight of authority sustain the title which defendant acquired by his purchase at the administrator’s sale.”
The doctrine announced in that case has been approved by this court in scores of other cases. If that be true of probate courts, then all the stronger is the reason for the existence of the rule when applied to a decision of the circuit court, which undoubtedly is a court of general jurisdiction.
So the question, as to whether or not John Dorrance was a resident of the city of St. Louis, at the time of the institution of the divorce suit, is concluded by the decree which was duly rendered therein.
We must, therefore, hold that the circuit court of the city of St. Louis, in the divorce case, had jurisdiction of the plaintiff, John Dorrance, and that it was not void on that acount, but only voidable at most.
(b) The record shows -that Emma Dorrance, the defendant in tbe divorce suit, was duly notified by publication of its institution as provided for by section 1770, Revised Statutes 1909.
*664The fact that the defendant in the divorce suit was in the State, and had not concealed herself from her usual place of abode, etc., would have been sufficient ground for quashing the service, yet that fact in no sense would militate against the fact that she was actually notified of the institution of the suit, by the publication mentioned. To illustrate: Suppose under the same facts, as disclosed by this record, the defendant, Emma Dorrance, in that case, instead of having been notified by publication, as she was, had been personally served with a summons, by the sheriff of Jackson county, could it be seriously contended, that the mere fact that she had not absconded or concealed herself at the time of the institution of that suit would have rendered the personal service had upon her absolutely void, and could for that reason be questioned in a collateral attack? Unquestionably not. Under the facts of the supposed case, if counsel for the defendant had desired, they could have questioned the jurisdiction of the circuit court over the person of their client, predicated upon the ground that she had not absconded herself, etc,, and she should, have raised those questions by answer, or by a timely motion, and she would not have been justified in ignoring the personal service had upon her, or to have treated the decree for divorce as a nullity.
In principle, there is no difference between the •service by publication, which was had upon the defendant, in that case, and the personal service mentioned in the supposed case. Both stand precisely upon the same footing, and while both were irregular, in a sense, nevertheless, they were valid until set aside in some appropriate and timely manner.
This precise question was presented to this court for determination in the cáse of Tooker v. Leake, 146 Mo. 420. On page 428 the court used this language:
“The case was tried by the court without a jury. The court by its declarations of law in effect holding, *665first, that the order of the circuit court setting aside-the judgment in the tax suit, had no effect upon the-title acquired under the sheriff’s deed; second, that although Horine and Tooker were in fact and long-had been residents of Greene county, Missouri, at the-time the return of non est on the alias summons was. made by the sheriff of Lawrence county, and at time the order of publication was made and published in the tax suit, and final judgment therein rendered, and at the time of the execution and sale thereunder, yet such judgment would support such execution and sale and pass the legal title to the purchaser Davis, even though in fact he or some of his associates for whose-benefit be bought, may have known that said Horine and Tooker so resided in said county in this State;, and in accordance with said declarations, the finding and judgment was for the defendants. Plaintiffs appeal.
“The action for the recovery of delinquent taxes, is an action in rem to enforce the State’s lien against the land subjected to the tax, to which the owner is a necessary party. In such suits the statute provides that ‘all notices and process shall be sued out and served in the same manner as in civil actions in circuit courts; and in case of suits against non-resident, unknown parties, or other owners on whom service cannot be had by ordinary summons, the proceedings shall be the same as -now provided by law in civil actions-affecting real or personal property. ’ [R. S. 1889, sec. 7682.] In civil actions in circuit courts, for the enforcement of liens on real property within the jurisdiction of such courts, the statute provides that, ‘If the plaintiff or other person for him shall allege in his petition, or at the time of filing same, or at any time thereafter shall file an affidavit stating, that part or all of the defendants are non-residents of the State . . . and cannot be served in this State in the manner prescribed in this chapter, or have absconded or *666absented themselves from their usual place of abode in this State, or that they have concealed themselves so that the ordinary process of law cannot be served upon them, the court in which said suit is brought, or in vacation the clerk thereof, shall make an order directed to the non-residents, or absentees, notifying them of the commencement of the suit,’ etc. (R. S. 1889, sec. 2022), and by section 2024, it is further provided that, ‘When, in any of the cases contained in section 2022, summons shall be issued against any defendant, and the sheriff to whom it is directed shall make return that the defendant or defendants can not he found, the court being first satisfied that process cannot be served, shall make an order as required in said section. ’ The statute then provides how such orders shall be published. When so published, and the publication proved, the defendants in such actions are as effectually served with process as -if served by summons, and a final judgment rendered on such service is just as conclusive as a judgment rendered upon service by summons, except that the defendant in the former case may within three years after the rendition thereof have the same reviewed and set aside for good cause, as provided in Revised Statutes 1889, section 2217 et seq. Such a judgment is impervious to collateral attack for any defect or imperfection in the service and not apparent upon the face of the record, and the jurisdiction of the court to render it cannot be questioned in s collateral suit by the allegation or proof of facts outside or dehors the record. [Payne v. Lott, 90 Mo. 676; Jones v. Driskill, 94 Mo. 190; Schmidt v. Niemeyer, 100 Mo. 207; Gibbs v. Southern, 116 Mo. 204; Cruzen v. Stephens, 123 Mo. 337.]”
The section of the statute upon which that decision was based is the same as section 575, Revised Statutes 1899, the section under which the publication in the ease at bar was had.
*667The language before quoted, from the opinion in the case of Tooker v. Leake, supra, was referred to and approved by this court in the case of State ex rel. v. Wessell, 237 Mo. 593.
Again the mere fact that the defendant in the divorce suit did not see the published notice of the suit, did not, and could not affect its validity. [See, also, Ellis v. Nuckols, 237 Mo. 290.]
Our reports are full of cases holding such services to be valid, notwithstanding the fact that the defendants never saw the publication. We. are therefore of the opinion, that the circuit court of the city of St. Louis acquired jurisdiction, over the persons of both plaintiff and defendant, in the divorce suit, and that being true, it must necessarily have acquired jurisdiction of the subject-matter of that suit, which was the marital relation existing between them. [Gould v. Crow, 57 Mo. 200.]
(c) The third reason assigned for setting the decree for divorce aside, namely, that the order of publication was void, and therefore she was not served .by legal process, is equally untenable. This necessarily follows from what we have held in paragraphs (a) and (b).
But in addition to that, in a former paragraph we disposed of the question of the validity of the order of publication, and the publication thereof, and there held that both were valid for the purpose of bringing the defendant therein into court. If that be true, and I think that there is no doubt of it, then she was in court, and she should have there made her defense whatever that may have been.
Not only did the publication of the notice bring the defendant into court, but the finding of that fact by the court, which was one of the issuable facts in the case,, was conclusive upon her, until set aside in the manner provided by law, which will be considered in a subsequent paragraph.
*668In discussing this question, this court in the case of Fears v. Riley, 148 Mo. 49, l. c. 58, said:
“It is the settled law in our State that in order to set aside a judgment for fraud, even-in a direct proceeding, it must appear that fraud was practiced in the very act of obtaining the judgment. [Lewis v. Williams, Admr., 54 Mo. 200.] It is not enough that there was fraud in the cause of action on which the judgment is founded and which could have been interposed as a defense (unless its interposition was prevented as a defense by fraud). [Payne v. O’Shea, 84 Mo. 129; Murphy v. DeFrance, 105 Mo. 53; Oxley Stave Co. v. Butler Co., 121 Mo. 614.] The judgment must be concocted in fraud, and the fraud must be actual fraud as contradistinguished from a judgment obtained on false evidence. [Moody v. Peyton, 135 Mo. 482.] These principles and these cases have lately been reviewed and approved by this court in Hamilton v. McLean, 139 Mo. 678, and in Bates v. Hamilton, 144 Mo. 1.
“Apply these tests to the allegations of the petition, and we have this result: It may have been false that Laura Riley was a resident of Audrain county, but that was a fact to be tried in that case, which was open to denial and contest by the defendant, and no more divests the court of jurisdiction or renders its judgment void on the ground of fraud than any other fact falsely asserted or testified to in the case. It may have been that she joined Tobe Lee, a minor, as a party defendant so as to be able to institute the suit in the county in which she lived and one of the defendants is found, under section 2009, Revised Statutes 1889; but this was no fraud on the court, because the court was informed that Lee was a minor, and it appointed a guardian ad litem for him, and he filed an answer. Moreover, it is wholly a mistake to say that an infant is not liable in an action for tort, e. g., assault, false imprisonment, libel, slander, etc. [Conway v. Reed, 66 Mo. 346; Morgan v. Cox, 22 Mo. 373; Addison on Torts *669(6 Ed.), p. 155, par. 101; Cooley on Torts (2 Ed.), p. 120.] Tobe Lee was liable in this case because he circulated the libel. [Townshend on S. & L. (4 Ed.), pp. 101, 102.]”
See, also, authorities cited and elaborately quoted from by the writer in the case of Lieber v. Lieber, 239 Mo. 1, decided by Court in Banc.
We, therefore, hold that the judgment and decree of the circuit court of the city of St. Louis, was valid and binding upon the defendant therein.
And it seems to me, that the three contentions previously mentioned and disposed of, are inconsistent with the whole theory of the present case as presented by counsel for appellant, in this: That, if the circuit court of the city of St. Louis acquired no jurisdiction over the persons of neither the plaintiff nor defendant, in the divorce suit, then clearly the decree rendered therein is absolutly void, and has no force or effect whatever. While upon the other hand, the petition in this case treats and considers the decree therein mentioned as an existing and valid judgment of that court, and comes here and asks this court to set it aside, for fraud, shown by evidence aliunde the record.
If absolutely void, then there is no necessity for setting the decree aside, for it could be collaterally attacked without resorting to this suit for that purpose.
These seem to be the views of my learned associate, Commissioner Brown, judging from the opinion written herein by him.
But be that as it may, in my opinion, there is no room for doubt, but what the decree when rendered was not absolutely void but was voidable only and the main question in this case, as I see it, is, can that voidable judgment or decree be set aside in any manner at this late day?
That question will receive consideration in the next paragraph of this opinion.
*670II. This brings us to the principal question involved in this litigation; and that is, has this court or any other court of this State, the authority of law, not the physical power, to set aside and nullify a decree of divorce, without the proper steps are taken therefor during the term at which it was rendered or within sixty days after the rendition of the decree. This question not only affects the authority of the court to nullify a decree of divorce, but it necessarily involves the divorce law itself, for the simple reason that if there were no divorces granted, then it is self-evident that there would be no fraudulent decrees for divorce rendered to be set aside, or nullified.
In fact, this is not only the chief proposition involved herein, but it is of the gravest character that has ever been presented to this court for determination since I have had the honor of being a member thereof.
It effects the very groundwork upon which our civilization and social system rest. It involves sociology in its broadest, deepest and best sense.
It involved the family relation, the home, and the joys, pleasures and happiness which are incident thereto, to say nothing of the peace and prosperity of the country.
Because of the great wrongs perpetrated upon the State at large, as well as upon the home and family, the legal divorce, as we understand it, has become a State and National crime.
I would, if I had my way, abolish this hideous monster, which stealthily lurks about the fireside, ever seeking whomsoever it may destroy and to put asunder those whom God has joined together, save and except for the crime of adultery alone.
By so doing, we would preserve the holy bonds of matrimony, the family and the home for the wife and children, and at the same time do away with the unfortunate grass-widow and worse than orphan children, who so badly need the care, custody and teach*671ings of both father and mother; and at the same time, I would thereby practically put a stop to those fraudulent divorce proceedings and prevent the guilty parties from again marrying innocent women and bringing innocent children into the world and thereby making the former concubines and the latter bastards through the action of the courts, by setting aside and for naught holding decrees for divorce obtained prior to the second marriage, as was done in the case of Lieber v. Lieber, supra.
But such is not the law, nor have I the power to enact it, consequently, we must deal with this case according to the law as we find it in this State, and not as we would desire it to be.
The statutory provisions governing this question are sections 2931 and 2932, Revised Statutes 1899', which are the same as sections 2380 and 2381, Revised Statutes 19091, and they read as follows:
“Sec. 2380. No final judgment or order rendered in cases arising under this article shall be reversed, annulled or modified, in the supreme or any other court, by appeal or writ of error, unless such appeal shall have been granted during the term of court at which the judgment or order appealed from was rendered, or unless such writ or error shall have been issued within sixty days after the order was made or judgment was rendered.
“Sec. 2381. No petition for review of any judgment for divorce, rendered in any case arising under this article, shall be allowed, any law or statute to the contrary notwithstanding; but there may be a review of any order or judgment touching the alimony and maintenance of the wife, and the care, custody and maintenance of the children, or any of them, as in other cases.”
The meaning of these statutes seem clear to me on their face, without seeking light elsewhere, but since some of my learned associates interpret- them *672differently from what I think they clearly mean, I will try to shed some sidelight upon them from other sources.
In the first place, the well known statutory rule of construction, which provides that in order to get at the true meaning of a statute, the court should first ascertain what the law governing the subject of the legislation was previous to the enactment, and second, ascertain what was the evil that existed, which the old law did not cover, and third, the remedy the Legislature intends by the enactment, should never be lost sight of in this case.
Now what was the law of this State governing the authority of courts to set aside a decree of divorce previous to the passage of the first enactment, of the statutes before quoted?
Tfiat question wa.s answered by this court in a divided opinion delivered by Ramble, J., in the case of Smith v. Smith, 20 Mo. 166, in the year of 1854. That was a bill of review filed under sections 1, 2, 3, and 4, of article 6, of chapter 137, Revised Statutes 1845, page 851, entitled, “Practice in Chancery,” by the plaintiff against the defendant, to set aside a decree of divorce theretofore obtained in the circuit court of the city of St. Louis, by the plaintiff there, the defendant here, against the defendant there, the plaintiff here.
Those sections of the statute read as follows:
“Section 1. When an interlocutory decree, taking a bill as confessed, shall be made, and a final decree entered thereon against any defendant who shall not have been summoned, as .required by this act, or who shall not have appeared to the suit, or have been made a party as the representative of one who shall have been summoned or appeared, such final decree may be set aside, if the defendant shall, within the time hereinafter limited, appear, and by bill of review, verified by affidavit, show good cause for setting aside such decree as against equity.
*673“Sec. 2. If the complainant shall, at any time after snch final decree, serve the defendant, within any of the United States or the territories thereof, with notice of the suit and the decree thereon, and such defendant shall not, within one year after such service, bring his bill of review, the court, on proof of the service of such notice, shall make an order that the decree stand absolute.
“Sec. 3. If such bill of review be not filed within five years after such final decree is rendered, the same shall stand absolute, whether notice thereof be given or not.
“Sec. 4. No such decree shall be set aside, unless the bill of review either show that there is no equity in the original bill, or contain such denials or allegations as amount to a defense to the merits, and then, only, on condition that the defendant answer the bill within a reasonable time, to be ordered by the court.”
In that case it was held that a decree for divorce was embraced within the meaning of those sections, and that it could be set aside upon the defendants filing a bill of review, within one year after the service of notice of the decree upon him or her, as the case might be, or within five years after the date of the decree, where the notice thereof had not been given as required by said sections. So we see that, at that time and prior thereto, a bill of review would lie against a decree for divorce just the same as it would against any other decree in chancery. But in that case Scott, J., the greatest jurist who ever graced or adorned this court, dissented from the majority therein, and pointed out the evil that would follow such a holding in the following language:
“In my opinion, the provisions of the law regulating chancery practice in relation to bills of review (R. S. 1845, p. 851), do not apply to proceedings in*674stituted to obtain a divorce from the bonds of, matrimony.
‘ ‘ In the first place, if tbe courts in which, such proceedings are begun will execute the law as it is written, a case for a review can scarcely arise. The 8th section of the act concerning divorce and alimony prescribes that, in all cases where the proceedings shall be ex parte, the court shall, before it grants such divorce, require proof of good conduct of the petitioner, and be satisfied that he or she is an innocent and injured party.
“In the same section, it is enacted: ‘Nor shall the guilty party be allowed to marry again by reason of such divorce, unless otherwise expressed in the decree of the court.’ This provision impliedly gives the innocent party a right, to marry immediately, and such has been the universal understanding of the community.
“As the lawmaking power had the subjects of the parties marrying again and ex parte proceedings in its mind, at the same time, and prescribed a period within which the guilty party should not marry, had it been contemplated that the innocent party in ex parte proceedings, could not, with safety, marry again immediately, it would have been so declared.
“Now shall the law give to a man the privilege of marrying, and, after it has been exercised, withdraw it, and thereby make an innocent woman a concubine, and her children illegitimate? A purchaser for a valuable consideration, without notice, is protected by our law, and shall an innocent woman, in a matter that is dearer to her than life itself, be in a worse condition than a mere purchaser of property? How could the law ever justify itself to the children of such a marriage? It is bad enough when, through the frauds, falsehood and imposition of a parent, children are made to hang their heads in shame; but shall the law itself be made the instrument of so great an outrage?
*675“Considerations of policy unite with the dictates of justice in forbidding any interference with the parties after a divorce has once been granted. The first marriage, in all such eases, without regard to the divorce, has ceased for all purposes for which it was contracted. Its sorrows and disappointments have come and are without remedy. The breaking up of the second marriage may be revenge, but it is no reparation for the evils that have been already done. It is only a multiplication of the distresses and misfortunes of innocent women and children.”
That decision not only announced what the law then was upon this subject, but Judge Soott, in his usual clear, strong and terse language, pointed out the evil that would follow the construction placed upon the act by the majority of the members of the court.
After that opinion was handed down, the first Legislature that convened thereafter, added two new sections 13 and 14, to chapter 55, entitled, “Divorce and Alimony,” which were approved November 23, 1855', and they have been revised and incorporated into each and every revision of the statutes from- that time to this practically without amendment, and are now sections 2380 and 2381, Revised Statutes 1909.
Judge Soott having seen the evils that would naturally arise from the construction placed upon the act, Governing Practice In Chancery, by the majority of the court, proceeded to point them out and showed that if the law authorized granting of a decree for divorce and permitted the innocent or successful party to remarry, and after having done so, withdraw the marriage by revoking or setting aside the decree, it would thereby make an innocent wife a concubine and her children bastards.
Not only that, he proceeded to show that a purchaser of property for a valuable consideration, without notice, is protected by our law, and asked “shall an innocent woman, in a matter that is dearer to her *676than life itself, be in a worse condition than a mere purchaser of property? How could the law ever justify itself to the children of such a marriage? It is bad enough when, through frauds, falsehood and imposition of a parent, children are made to hang their heads in shame; but should the law itself be made the instrument of so great an outrage?”
Proceeding he said: “Considerations of policy unite with the dictates of justice in forbidding any interference with the parties after a divorce has once been granted. The first marriage, in all such cases, without regard to the divorce, has ceased for all purposes for which it was contracted. Its sorrows and disappointments have come and are without remedy. The breaking up of the second marriage may be revenge, but it is no reparation for the evils that have been already done. It is only a multiplication of the distresses and misfortunes of innocent women and children.”
The Legislature is presumed to have known what construction this court placed upon the statutes of the State mentioned in the Smith case, supra, and with that knowledge, proceeded to remedy the evils so clearly pointed out by Judge Scott in that case, by the enactment of sections 13 and 14 before mentioned.
Can there be any doubt in the mind of any fair-minded person, but what the Legislature thereby intended to prohibit the courts in the future from setting aside a decree of divorce in any other manner than that stated therein?
I think not. This is made doubly certain from the fact that the Legislature at the very next session after Judge Scott pointed out the evils that would flow from the decision in that case, enacted the two sections mentioned.
To my mind it is perfectly clear, that the Legislature did not intend that the law, as pointed out by Judge Scott in the Smith ease, should longer be held *677responsible for the disgrace and injustice which were being perpetrated in its name and under its sanction upon innocent men and women, and their children. In other words, the Legislature clearly intended that when the law divorced a man and wife, and authorized one or both to remarry, no court should have the authority to set aside the decree of divorce and thereby make a concubine of the second wife and bastards of her children.
Judge Scott thought that the principles of public policy united with the dictates of justice would forbid the exercise of any such authority on the part of the courts, even in the absence of the enactment of said sections 13 and 14, and after their enactment, viewed in the light of their history, there can be no logical escape from the conclusion that the Legislature intended thereby to bar all future molestation of such decrees.
And in considering this question it should be borne in mind that the proceeding in the Smith case was a bill of review, seeking to set aside the judgment on the grounds of fraud; and that when the Legislature came to deal with that subject it not only took from the courts the authority to set aside a decree for divorce by a bill of review, but also in express, terms prohibited them from doing so by appeal or writ of error, except in the manner stated in said sections 2380 and 2381, notwithstanding any statute or lew to the contrary.
That being true, it is almost self-evident that the Legislature was not undertaking to remove simply a portion of the means by which a decree of divorce could be set aside and nullified, but it is perfectly apparent from reading those sections, that it was the design of the lawmakers to take from the courts all authority of every kind to set aside, modify and annul any such decree in the future except in the manner therein provided for.
*678It was wholly immaterial to the Legislature, to the parties interested, and to society by what means the annulment, if authorized, was to be aecomplished. The same wrong, injustice and evil would flow from the setting of such a decree aside, by a bill in equity, that would result if set aside by a bill of review, appeal or writ of error.
What sense would there be in the Legislature prohibiting the courts from setting such a decree aside by a direct proceeding, such as by a bill of review, appeal, or writ of error, and recognizing or sanctioning the authority of the courts to do so by a bill in equity? I submit none whatever. The Legislature was not thinking so much of the means by which the mischief pointed out by Judge Scott was being perpetrated, as it was about the abolition of the evils which would naturally flow from reversing, annulling or modifying such decrees
It has been suggested in the opinion of my learned associate, that the argument made by Judge Scott in the Smith case would apply with “greater force in favor of the bigamist.” I am unable to agree to that language, for the reason that in the case of the bigamist he alone through his fraud and deception has perpetrated a great wrong upon two or more innocent women, while in the case stated by Judge Scott, the law of the land, through the instrumentality of our courts of justice, has authorized the second marriage, and after it has been solemnized, to nullify it by the same instrumentality, would be nothing more or less than the perpetration of the grossest fraud and deception upon the second wife and her children by the courts of the country, and thereby change her and them from a wife and children to a concubine and bastards.
It is bad enough for a depraved bigamist to so wrong innocent women, but the thought that the courts of our country can be made the means by which a wife may be changed into a concubine, and legitimate *679children into bastards, is abhorrent, and repulsive to every instinct of manhood and womanhood. And it is no answer to this suggestion to say that the defendant in this case has not remarried, and'therefore he has no wife or children to.be wronged by a decision adverse to him. The statute makes no distinction, as to such cases.
If the decree can be set aside where there is no second marriage, then it can be done where a second marriage has been consummated. This is elementary.
This identical question came before this court for determination in the case of Salisbury v. Salisbury, 92 Mo. 683. The facts of that case were substantially the same as are those in the case at bar. There the' wife abandoned her husband because of his adultery, and retired to her home in New York. During her absence, the husband procured a divorce from her upon service by publication. She knew nothing of the suit, and never heard of the publication until her return to this State, which was long after the expiration of the term of the court at which the decree for divorce was rendered. Upon learning of the decree, she brought a bill in equity to set it aside upon the ground that it was procured by fraud, etc. The defendant filed a demurrer to the bill, which was by the court sustained, and the plaintiff duly appealed the cause to this court. In that ease Black, J., in construing sections 2184 and 2185, Eevised Statutes 1879', the same as 2380 and 2381, Eevised Statutes 19091, used this language:
“By section 2184 appeals in these divorce suits must be allowed at the term at which the judgment or decree appealed from was rendered, or a writ of error must be sued out within sixty days after the rendition of the judgment. Section 2185' is as follows: ‘No petition for review of any judgment for divorce, rendered in any case arising under this chapter, shall be allowed, any law or statute to the con*680trary notwithstanding; bnt there may be a review of any order or judgment touching the alimony and maintenance of the wife, and the care, custody, and maintenance of the children, or any of them, as in other cases. ’
“The case of Smith v. Smith, 20 Mo. 167, came before this court in 1854. There the husband had procured a decree of divorce on an order of publication, and had married another woman. The former wife, under sections 1, 2, 3, and 4, article 6, of the chancery code of 1845, filed her petition for review, which was sustained. Scott, J., dissented, and made some strong observations against the right of the court to interfere in such cases as the law in terms allowed the party, at whose instance the decree was procured, to immediately marry again. Fallowing this case, and at the revision of 1855, section 2185 was adopted. This section, it was held in Mansfield v. Mansfield, 26 Mo. 163, did not' apply to divorce suits commenced prior to May 1, 1856, and that is all the case decides, for that case came under the law as it previously existed. The policy of the statute is there severely criticised, but it has remained upon the statute books from that day to this, since which time no case, until this one, has come before this court for review, otherwise than on appeal or writ of error.
“The sections of the chancery code of 1845-, before mentioned, provided that when a final decree had been rendered against a defendant, who has not been summoned and had not appeared to the suit, such decree might be set aside by bill of review, filed within a designated time, showing that the decree was against equity. These sections are substantially re-enacted in the present practice act (secs. 3684-5’-6, R. S. 1879'); and it is contended, by counsel for appellant, that the petition for review, which is prohibited, is that only which is provided by the statute, and that a court of equity always has the power, independent of the stat*681ute, to set aside its own decrees for fraud in procuring them. But the statute declares that no petition for review shall be allowed, any law or statute to the contrary notwithstanding. It is clear we cannot limit the prohibition to this statutory review. In chancery practice bills of review might be brought upon the discovery of new matter; such, for example, as the discovery of a release or receipt, which would change the merits of the claim upon which the decree was founded. [Story’s Eq. Plead. (9 Ed.), sec. 412.] So a bill to impeach a decree for fraud is an original bill in the nature of a bill of review. [Story’s Eq. Plead., sec. 426; 2 Dan. Ch. Plead, and Prac., sec. 1584, note 4.]
“The present petition is essentially a bill of review, or, as it is said, in the nature of a bill of review. Its first and foremost object is to set aside the former decree, and we cannot escape the conclusion that it is within the statute, and clearly prohibited. It was the evident purpose of the Legislature, with the example of Smith v. Smith, supra, before it, to deny a review in all cases, whether based upon a charge of fraud or not. The breaking up of second marriage relations, which must often result in disaster to innocent persons and children, doubtless led to the enactment. It would seem the statute might allow a review of these divorce decrees rendered on publication of notice, where no new marriage relation has been contracted, without violating any principle of sound public policy. But a criticism of the law avails nothing. The statute is clear and emphatic. It makes no exception. The courts are powerless to legislate one into it. It asserts broadly a principle of public policy which has found recognition elsewhere. [Parrish v. Parrish, 9 Ohio St. 534; Greene v. Greene, 2 Gray, 361.] The St. Louis Court of Appeals reached the same conclusion, in a case not materially different from the one in hand. [Childs v. Childs, 11 Mo. App. 395.] ”
*682That case is on all-fours with the case at bar, and the opinion therein was written by Judge Black, one of the strongest jurists who ever sat upon this bench.
There as here, a distinction was tried to be drawn between a bill in equity to set aside the decree and a bill of review.
But Judge Black in that case ruled, and correctly so, that under said sections of the statute no such distinction existed between the two, and that within the meaning of those statutes a. bill in equity was practically the same as a bill of review.
In the case of Childs v. Childs, 11 Mo. App. 395, a bill in equity was filed in the circuit court of the city of St. Louis, by the plaintiff against the defendant, for the purpose of setting aside a decree of divorce rendered therein where the plaintiff in the last case was the defendant in the first and the plaintiff in the first there was the defendant in the second. The bill stated that the defendant had driven her from his home without good cause or excuse, and refused to live with her, and subsequently abandoned her, and without her knowledge went to St. Louis, where he procured a divorce from her on service by publication. The bill also stated that the facts stated in the petition for divorce were false and fraudulently made, and that she never heard of the divorce suit until long after the rendition of the decree therein. The bill then asked to have the decree of divorce set aside and for naught held, etc. A demurrer was filed to the petition, which was overruled in an opinion written by Thayer, J., then on the circuit bench, but subsequently was one of the judges of the United States Circuit Court of Appeals of this circuit. The plaintiff declines to plead further, and judgment was accordingly rendered in favor of the defendant. After taking the proper preliminary steps, the plaintiff duly appealed the cause to the St. Louis Court of Appeals. The Court of Ap*683peals quoted and adopted the following language from the opinion of Judge Thayer:
4 ‘Prom the facts alleged by the plaintiff, this would appear to be a case where a court of equity ought to interfere and set aside the "original decree of divorce, on the ground that the same was procured by fraud; but our statute respecting divorce has apparently barred the door to such relief. Section 2184 of the Revised Statutes of 1879 limits the right of appeal from a decree of divorce to the term at which the decree was rendered, and the right to sue out a writ of error to sixty days after the entry of the decree. Section 2185 (as if to close the way to all redress in ma.t- . ters of divorce, where an appeal is not taken or a writ of error is not sued out in time) provides, that ‘no petition for review of any judgment for divorce rendered in any case arising under this chapter shall be allowed, any law or statute to the contrary notwithstanding. ’
“This proceeding is clearly a ‘petition for review’ of the judgment or decree of divorce entered in room No. 1 of this court, on June 18, 1879. [Story’s Eq. PI. (10 Ed.), sec. 426.] This statute went into force in May, 1856, and has been incorporated into each subsequent revision. It is true that the policy of the statute has been criticised by the Supreme Court in the case of Mansfield v. Mansfield, 26 Mo. 163, also in the case of Cole v. Cole, 3 Mo. App. 571; but its applicability to a case like the present has never been authoritatively denied, and indeed it cannot be denied, unless the courts hold that the Legislature did not intend to deny the right to file a petition for review of judgments for divorce, where the same had been obtained bj fraud. Such construction of the act in question would incorporate an exception into the statute, which the Legislature have not expressed, and, furthermore, it would practically nullify the law; since the great majority of bills for review of judgments of *684any kind, are based upon allegations of fraud in procuring such judgments.
“In tbe case of Cole v. Cole, tbe appellate court, on an inspection of the record in tbe divorce case, were enabled to say that tbe decree was utterly void for want of jurisdiction appearing on tbe face of tbe record. In Mansfield v. Mansfield, tbe action for divorce was begun before tbe statute (section 2185) went into force, and tbe same was not beld applicable to tbe case then under consideration. But in tbe present case, tbe original proceeding appears to bave been strictly regular. Tbe petition for divorce contains all tbe jurisdictional averments; service by publication was duly made; and if tbe decree is to be impeached it must be by evidence dehors the record.
‘11 am of tbe opinion that tbe Legislature intended, by section 2185 of tbe Divorce Act, to prohibit courts from entertaining petitions for review (based upon any ground) after the lapse of tbe term at which tbe decree was rendered. They probably foresaw that persons once divorced might contract new relations by marriage with innocent third parties, and that to allow such decrees to be impeached, even for fraud, years or even months after they were rendered would be productive of more barm than good. This ruling will not prevent tbe courts from setting aside decrees of divorce at any time, under tbe authority of Cole v. Cole, where tbe record on its face shows that tbe court bad no jurisdiction over tbe case, and that tbe decree is a nullity. But where it is sought to impeach decrees of this character by evidence aliunde, and for matter not apparent on tbe face of tbe record, tbe courts, in my opinion, bave no power under tbe statute to proceed.”
This court in tbe case of Mansfield v. Mansfield, 26 Mo. 163, while doubting tbe wisdom of tbe statute in an opinion written by Napton, J., beld that section 14, Revised Statutes 1855, was applicable to all suits for *685divorce commenced after May 1, 1856, and thereby recognized the fact that there would be no other method by which a decree for divorce could be reversed, set aside, or modified, except as provided for in said sections 13 and 14, approved November 23, 1855.
The criticism of the statutes referred to in the foregoing cases did not go to the validity or scope of the statutes themselves, but to the wisdom of the policy expressed therein.
The same question was presented to the Kansas City Court of Appeals in the case of Nave v. Nave, 28 Mo. App. 505. Ellison, J., who wrote the opinion, clearly states the law of the case in the following language.
“Where the court has jurisdiction in divorce proceedings, the statute of this State (sec. 2185) has made the decree absolutely final unless appealed from or corrected on writ of error as provided in section 2184. This statute was probably enacted in view of the division of the Supreme Court in Smith v. Smith, 20 Mo. 166. It was criticised in Mansfield v. Mansfield, 26 Mo. 163, but has never been construed otherwise than as it reads. On the contrary, in Salisbury v. Salisbury, 92 Mo. 683, the section referred to is literally interpreted, and it is held ‘to deny a review in all cases, whether based upon a charge of fraud or not.’ In view of this decision it is not at all necessary to enter into a discussion of the question. It is so decided and no doubt properly.
“But counsel seeh to avoid the force of the statute by denominating the proceeding before us, as a motion, and not a bill or petition for review. The statute is: ‘Sec. 2185. No petition for review of any judgment for divorce, rendered in any case arising under this chapter, shall be allowed, any law or statute to the contrary notwithstanding,’ etc. It would be a singular holding to say, in the face of this statute, that you could accomplish the same purpose by motion *686which you are prohibited from obtaining by petition. A party would thus be enabled, by a change of his pleading, to thwart the object of the law. The purpose of this statute is not to regulate a matter of practice, but it is to prevent the disturbance of a judgment of divorce rendered by a court of competent jurisdiction, under any circumstances, except by appeal or writ of error. Whether we call defendant’s paper a motion or a petition, it is certain she is seeking by it to bring about what the law says shall not be done. The .judgment of the circuit court was manifestly correct and it is hereby affirmed.”
As previously stated, the divorce business of this country has become a State and a National crime, and thereby thousands, tens of thousands, yea, I dare say, more than fifty thousand decrees are rendered in this country each and every year, and that has been going on for many years; and of course, there reside within this State her proportional part of that number who have married innocent men and women within our borders, who perhaps in many instances never heard of the divorce, especially those granted in courts of other States and foreign countries.
Under that condition of society, should we adopt the easy rule of nullification announced in the opinion written by our learned commissioner, in this case, by repealing the statutes before mentioned, by judicial construction, then the present generation will never see the end of the great injustice, cruel wrongs and inexcusable outrages, which will be inflicted by the great institutions of this State called courts of justice, upon hundreds of innocent men and women and their helpless children. If the public policy announced in those statutes is unwise then the remedy should rest, not with the courts, but with the Legislature, which enacted it.
By a legislative repeal, the act would operate prospectively, and not retrospectively, as will be the *687■case if repealed by the judiciary, as insisted upon by my learned associate.
Those statutes were designed as enactments of repose, in domestic relations; and now, at this late date, for this court to repeal them after they have been in full force and effect for more than a half a century,would greatly disturb our social relations, and subject every decree rendered for divorce in this State during the fifty years, to attack by a bill in equity, and thereby disturb our social relations, which have rested upon those statutes, to the same extent that a bull would disturb things if turned loose in a china store. No one can tell whom it will affect and when, but that it will be many, first and last, there can be no doubt. Far better that the few who have been injured by the fraudulent divorces go without redress, than to throw down the bars of oppression to the numerous innocent and helpless. In order to protect the few, it is proposed to throw down the bars which protect the many.
That hard cases make bad laws is as true to-day as it was yesterday; and the thought that such a proposition is seriously contemplated, causes me to shudder because of the great wrongs and injustice which are certain to flow therefrom to innocent men, women and children, in the near future.
So viewing this ease from whatever standpoint you may, it seems to me that under the law as enacted by the Legislature, and as construed by this court and by the Courts of Appeals for more than a half a century, there is no escape from the conclusion that the trial court properly sustained the demurrer to the petition.
T am therefore of the opinion that the judgment of the circuit court should be affirmed.