DocketNumber: 5 Div. 248.
Citation Numbers: 175 So. 284, 234 Ala. 453, 1937 Ala. LEXIS 385
Judges: Thomas, Anderson, Brown, Knight
Filed Date: 5/13/1937
Status: Precedential
Modified Date: 11/2/2024
The appeal and assignments of error challenge the overruling of demurrers to the bill as amended. The appeal was taken under section 6079, Code.
This is an original bill in the nature of a bill of review grounded upon fraud in the procurement of the decree, which it seeks to annul. Hogan v. Scott,
There was no error in overruling appellant's motion to dismiss the amended bill for failure to execute a bond under the provisions of section 6607, Code. No such bond was required or fixed by the court when consent to file the bill was granted. It was not a condition precedent to the filing and maintenance of such a bill. The status quo had not changed.
No bar of the statute had intervened. Section 8966, Code.
Under the facts averred, appellee was not guilty of laches barring her suit for review, as the bill was filed within a year after discovery of the alleged fraud. Section 6608, Code; Nichols v. Dill,
A decree for divorce may be impeached, as any other decree, by the injured party, for fraud within the rules that obtain. Ex parte Kay,
The fraud for which chancery will set aside a judgment at law must be fraud in the very act of procuring that judgment or in its concoction, and must be extrinsic or collateral to the matter which was tried and determined by the judgment in question. Sims v. Riggins,
The suit must be brought within the time prescribed by the statute and the facts excusing delay. Hatton v. Moseley,
In Brown v. Brown,
The allegation of facts in the bill, as last amended, shows a fraud on the court in the procurement of the judgment and within the rule of our latest decisions (Keenum v. Dodson,
However, we are of the opinion that this case comes within the rule as to setting aside judgments or decrees for fraud upon proof of extraneous facts. It is not here a disputed issue of fact sought to be reopened and retried, but extraneous proof to the effect that there was imposition upon the court in representing to the court testimony which in fact was not given by the witness. This is by extraneous proof and comes within the rule of the authorities, and we are not here concerned with any conflicting views heretofore noted in cases of this character.
We may further observe that where the jurisdiction of the court is invoked and obtained by a fraudulent "concoction" and the fraud is consummated through the instrumentality of a court of justice, it would impeach the moral sense and that of justice that courts be not protected against such fraud. Sims v. Riggins,
"We can conceive of no worse reflection upon a judicial system, no lowering of its dignity and of the respect due to its findings more regrettable than that the tribunal of justice may become an impotent agency of fraud against those who look to it for protection. * * * That the fraudulent scheme contemplated perjury and was consummated thereby does not lessen the call to the jurisdiction of a court of equity."
There was no error in overruling demurrers to the bill as last amended, and the judgment of the circuit court is affirmed.
Affirmed.
ANDERSON, C. J., and BROWN and KNIGHT, JJ. concur.
Nichols v. Dill , 222 Ala. 455 ( 1931 )
Ex Parte Kay , 215 Ala. 569 ( 1927 )
Henley v. Rucker , 208 Ala. 165 ( 1922 )
Nation v. Nation , 206 Ala. 397 ( 1921 )
Jones v. Hubbard , 208 Ala. 269 ( 1922 )
Cunningham v. Wood , 224 Ala. 288 ( 1932 )
Davis v. Davis , 211 Ala. 317 ( 1924 )
Peters Mineral Land Co. v. Hooper , 208 Ala. 324 ( 1922 )
McGathey v. Thompson , 224 Ala. 163 ( 1931 )
Montgomery v. Hammond , 228 Ala. 449 ( 1934 )
Phillips v. Phillips , 223 Ala. 475 ( 1931 )
Keenum v. Dodson , 212 Ala. 146 ( 1924 )
Jones v. Henderson , 228 Ala. 273 ( 1934 )
Bailes v. Bailes , 220 Ala. 177 ( 1929 )
Hatton v. Moseley , 229 Ala. 240 ( 1934 )
Wright v. Fannin , 229 Ala. 278 ( 1934 )
Williams v. Uptagrafft , 232 Ala. 454 ( 1936 )
Perry v. Perry , 230 Ala. 502 ( 1935 )