Bernero v. Bernero

In 1927 John D. Bernero sued for and obtained a decree of divorce from Mabel Bernero, which was based upon service of process by publication and mail. The proceedings appear to have been regular except as hereinafter set forth. After this decree Bernero re-married, and thereafter died in May of 1933, his second wife having died in December, 1932. He was in his lifetime and up to the time of his death a member of the fire department of the city of Chicago, a participant in and contributor to the firemen's pension fund, and so situated that his lawful widow might be in a position to claim a pension. In July of 1933 Mabel Bernero, who had been made defendant in the divorce suit of 1927, filed a bill in the nature of a bill of review in the same court where the decree of divorce had been granted, setting up and alleging all of the record and pleadings in the divorce case. She alleged that Bernero had filed a perjured affidavit as the basis for substituted service in the divorce case, and had therein falsely stated that she lived at an address at which she had never resided; that this falsity was well known to Bernero, and in her bill she alleged other facts sufficient, in law, to invalidate the jurisdiction of the court which had entered the decree of divorce. In her bill of review she alleged that she never knew of the divorce until June 29, 1933, and that because of the misrepresentation of the complainant in the original divorce case the court was without jurisdiction therein, and that the decree was void for such want of jurisdiction. It was the prayer of the bill of review that the original decree he vacated. On this proceeding certain heirs of Bernero were made parties, and service was had on one of them, who defaulted. Thereafter, on February 7, 1934, a decree was entered pro confesso in accordance with the prayer of the bill. Three weeks after the entry of this final decree the appellant, the Retirement Board of the Firemen's Annuity and Benefit Fund of Chicago, entered its appearance, accompanied by a motion for leave to intervene in the proceedings on bill of review and to vacate the decree theretofore entered in that cause. In support of that motion it was suggested to the court, among other things, that the intervenor had had no notice of the proceedings on review and no opportunity to defend itself or its funds; that Bernero left no estate in which Mabel Bernero could claim any interest; that the superior court could take no jurisdiction of the cause; that Mabel Bernero in fact had actual notice of the divorce proceedings and had actual notice of the subsequent marriage of Bernero. It was further alleged that the proceeding for a review and annulment of the previous decree was a subterfuge adopted by Mabel Bernero to perpetrate a fraud upon the firemen's annuity and benefit fund of Chicago. The motion for leave to intervene was denied, and on appeal to the Appellate Court for the First District that judgment was affirmed. The cause comes here by further appeal, upon leave granted.

It is the appellant's contention that section 25 of the Civil Practice act permits it to intervene in this cause. That section provides, in substance, that where a complete determination of the controversy cannot be had without the presence of other parties the court may direct them to be brought in, and further, that where a person not a party has an interest or title which the judgment may affect, the court, on application, shall direct him to be made a party. (Ill. State Bar Stat. 1935, p. 2441.) The act further provides for service of summons on the new or additional parties, but it says nothing about intervention, and, so far as we can see, adds nothing to the existing law on that subject.

The appellant argues that the decree in the court below will result in Mabel Bernero becoming the widow of John Bernero, and that by this result she will become entitled to, and may, claim a pension from the appellant. It says that for this reason it had a right to intervene, because the judgment will affect the pension fund. The appellee insists that this result is merely an incident, and that if the fund is affected it is only indirectly. She further insists that the motion for leave to intervene came too late after the final decree had been entered, and cites much authority to the effect that an intervenor comes into the case as he finds it. It will be unnecessary to discuss this last point.

The only matter before the superior court in the original divorce case or on the bill of review was a question as to the continuance or dissolution of the marriage between John and Mabel Bernero. In this subject matter the appellant had no interest, and neither could the judgment rendered directly affect any property or title of the appellant. It is obvious that the marital status of John Bernero at the date of his death might determine whether or not the appellant is liable for a pension, but that interest falls far short of any direct or immediate interest in the subject matter. On the other hand, it is merely incidental. No one would deny his right to re-marry, nor the right of either he or his wife to obtain a divorce. No one would argue that the retirement board could either prosecute, defend or intervene in any divorce case in Chicago simply because one of the parties might be a fireman. This would be no more permissible than to permit that board to enjoin some designing woman from marrying an aged fireman, even though it might be perfectly obvious and susceptible of proof that they would enter into the relation for the express purpose of placing her in a position to obtain a pension. In other words, the pension is a mere incident to the marital relation, and the marital relation itself is a status over which the appellant has no control and in which it has no direct interest.

If, as the appellant argues, the entire transaction is fraudulent, the courts are open to it for redress. It has long been held, and it is established law in Illinois, that whenever a judgment is procured through fraud and collusion for the purpose of defrauding some third person, such third person may show collaterally the fraud and collusion by which the judgment was obtained and escape the burdens and injuries thereby thrust upon him. (Green v. Hutsonville Township HighSchool District, 356 Ill. 216; Atlas Nat. Bank v. More, 152 id. 528; Elting v. First Nat. Bank, 173 id. 368; Wing v.Little, 267 id. 20; People v. Chicago, Burlington and QuincyRailroad Co. 247 id. 340; Martin v. Judd, 60 id. 78.) If and when the appellee applies for a pension will be soon enough to try out those matters which the appellant wishes to interject into this cause. To hold as the appellant wishes would make it imperative to permit the retirement board to intervene in every divorce case in Chicago if a fireman happened to be a party and would place a premium on the prosecution of such suits.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.

Mr. JUSTICE WILSON took no part in this decision.