Opinion
No. 27885.
January 16, 1951.
APPEAL FROM THE CIRCUIT COURT, CITY OF ST. LOUIS, JAMES F. NANGLE, J.
Maurice S. Karner, Charles F. Ballak, St. Louis, for appellant.
Patrick A. Marcella, Albert E. Hausman, St. Louis, for respondents.
This is a suit for a declaratory judgment brought by plaintiff, Marion Butler, against defendants, Annabelle Walsh, also known as Annabelle Walsh Butler, and William C. Connett IV, administrator d.b.n. of the estate of George Lee Butler, deceased. The prayer of the petition was that a decree of divorce obtained by George Lee Butler on March 27, 1946, in a suit brought by him against plaintiff in the Circuit Court of St. Clair County, Illinois, be declared null and void, and that plaintiff be declared to be the lawful widow of said George Lee Butler. The trial court held against the plaintiff and, in its decree, found: "that George Lee Butler did in the Circuit Court of St. Clair County, Illinois, on March 27, 1946, obtain a decree of divorce against plaintiff, Marion Butler, and the said defendant Annabelle Walsh Butler did on the 12th day of December, 1946, lawfully marry the said George Lee Butler, and that the said George Lee Butler did die intestate in the City of St. Louis, Missouri, on the 18th day of July, 1947, and defendant Annabelle Walsh Butler is now the true and lawful widow of the said George Lee Butler." Accordingly, plaintiff's petition was dismissed with prejudice and, from the judgment of dismissal, plaintiff appealed.
Plaintiff based her right to recover upon allegations of fraud practiced on the Illinois court by George Lee Butler in regard to his legal residence and in obtaining service in said suit. Those charges were that Butler was not a resident of St. Clair County at the time he filed the divorce action, and that in the affidavit upon which the order of publication was based the said George Lee Butler stated that the last known address of the defendant therein (plaintiff herein) was 6253 North Drive St., University City, Missouri, when he knew that she at that time lived at 5949 Maple Avenue in the City of St. Louis.
It was averred that defendant Annabelle Walsh Butler was claiming to be the true and lawful widow of George Lee Butler and was claiming a widow's share of his estate, and had filed a claim for a widow's allowance in the Probate Court of the City of St. Louis; that Annabelle Walsh Butler was not in truth and fact the true and lawful widow of George Lee Butler, but that plaintiff was his lawful widow and was entitled to the widow's share of the estate left by the said George Lee Butler.
George Lee Butler and Marion Butler were married October 27, 1926. One child, Georgia Lee Butler, was born of this marriage. Georgia Lee was eighteen years old at the time of the trial — June 16, 1948. George Butler and his wife Marion lived together as man and wife until they separated in 1932 or 1933. On March 13, 1935, George Butler was sentenced to two years in the Missouri State Penitentiary on a charge of receiving stolen property. Plaintiff never lived with George Butler after his incarceration in the penitentiary. At the time plaintiff separated from George Butler she lived with her daughter, and her father and mother, at 6253 North Drive in University City, Missouri. In June, 1942, the family moved to a house on Geraldine Street in Overland, Missouri, and in 1944 moved to 5949 Maple Avenue, in the City of St. Louis, Missouri.
On December 25, 1938, a marriage license was issued by the Recorder of Deeds of the City of St. Louis to Michael Foglia and Marion Butler, and on the same day a marriage ceremony was performed by George A. Hart, Justice of the Peace, uniting the above named parties in marriage.
Michael Foglia testified that he and plaintiff never lived together as man and wife. He stated that the reason he did not live with plaintiff was because of lack of accommodations. He stated that plaintiff had a home but needed all the rooms there for her family. However, it appears that plaintiff and Foglia registered together as man and wife at various hotels in St. Louis where they would spend the night together. It also appears from Foglia's testimony that they lived together at the LaSalla Hotel in Chicago for about ten days in August, 1943, and in a hotel in Kansas City for about three days in 1944. Foglia's mother lived at 771 Bayard Avenue in the City of St. Louis and, according to the testimony of Foglia, plaintiff was registered as living there. Plaintiff's daughter, however, testified that her mother never lived at 771 Bayard Avenue. Foglia ran a tavern located at Sarah Street and Westminster Place in the City of St. Louis. Foglia testified that plaintiff was employed by him at this tavern. Plaintiff claimed she was a partner in the business, and it appears that in 1949 plaintiff brought suit against Foglia to establish her interest as such partner.
The divorce suit filed by George Lee Butler against Marion Butler was brought in the Circuit Court of St. Clair County, Illinois, and was tried on the 17th of May, 1946, and resulted in a finding and decree in favor of George Lee Butler, plaintiff therein. The sole ground for divorce alleged in the petition was desertion. Service of process in said suit was by publication, based upon the following affidavit:
"George Butler, first being duly sworn according to law, deposes and says that he is the plaintiff in the above entitled cause and that the above mentioned defendant, Marion Butler, is not a resident of the State of Illinois.
"Affiant further states that the defendant's last known place of residence was at 6253 North Drive St., University City, Missouri.
"Further the affiant sayeth not."
On April 22, 1946, a copy of the order of publication was by the clerk of the court placed in the United States mail in an envelope addressed to "Marion Butler, 6253 North Drive St., University City, Missouri." This envelope and its contents were later returned to the clerk stamped "Return to writer unclaimed."
Georgia Lee Butler testified that her father lived in a house on Flint Avenue near Florissant, Missouri, when she visited him two or three times in 1945. She stated that he lived in the basement. She did not know who occupied the upper portion of the house. She thought, but was not quite sure, that the house where her father lived at the time was a one-story house. She didn't know whether it was a frame or brick house. She stated she was never in the basement where her father lived, but saw her father on the outside of the house. The time of these visits was not definitely fixed by the witness. She stated that the first time "* * * it was about 1945. I went over there to get some money for a coat. It was in the wintertime." She further testified:
"Q. Over what length of time did these visits spread? A. About a month, I guess."
The next witness produced by plaintiff to give testimony concerning the residence of George Lee Butler was Catherine Tebeau. The witness stated that in 1946 George Butler roomed at 3933 Ashland Avenue; that she knew he lived at this address on Ashland Avenue because her son took her there on April 5th or 6th, 1946, so that she might talk with Butler about getting back a house which she claimed was taken away from her by the defendant Annabelle Walsh Butler. Catherine Tebeau testified: "Well, my son took me out there. Annabelle Butler, she took me out that way. he said, 'Mamma, let's go and see Butler and see if we can get your home back.' We went out there and he was coming down the stairs and I said, 'Hello, George.' He said 'Hello' and we stopped and talked * *." The witness further testified that she talked to George Lee Butler about regaining possession of a house, and that Butler said he did not have time to talk to her but would see her later. She further testified that the house of which she was dispossessed by defendant Annabella Walsh Butler was at 5725 Lee Avenue in Jennings, Missouri.
The next witness was Eugene John Tebeau who was an ex-husband of Annabelle Walsh Butler. In 1938 Eugene Tebeau was convicted in the Federal Court under a charge of violating the Dyer Act, and was paroled in 1945. According to Tebeau's testimony, George Lee Butler saw a great deal of Annabelle while he (Tebeau) was in the penitentiary. Tebeau stated that after he was paroled from the penitentiary he kept close watch on Butler and for that reason claimed to have acquired knowledge of where Butler lived at various times. Tebeau further testified that in the latter part of March, 1946, Butler lived at 6201 Flint Avenue, the home of his (Tebeau's) former wife, Annabelle; that Butler then moved to 3964 Maffitt Avenue where he roomed in the home of some blind people for probably a week, then moved to the home of a Mrs. Graham at 3933 Ashland Avenue, and lived there until he married Annabelle. Tebeau stated that after Butler married Annabelle, Butler moved to the home of Mrs. Graham's daughter at 4200 Margaretta Avenue in St. Louis. On cross-examination the witness stated he was not very friendly toward Annabelle.
Plaintiff also introduced in evidence a statement prepared by Mrs. Matilda Graham who lived at 3933 Ashland Avenue. Mrs. Graham was not produced as a witness, but it was agreed between counsel for both parties that if Mrs. Graham were present at the trial she would testify that Butler came to her house March 21, 1946, and lived there until June 26, 1946. The statement prepared by Mrs. Graham showed charges for room rent from March 21 to June 26, 1946, at $4 per week. There were also items for laundry, and the statement contained the following: "Mr. Butler come March 21/46."
Mrs. Elsie Huggens of East St. Louis, Illinois, testified for the defendants. She stated that George Lee Butler lived at her home at 502-a Missouri Avenue on several occasions, the last time for fifteen months, beginning March 17, 1945. She stated, "* * * it happened to be St. Patrick's Day when he came over. * * * I didn't have no room. In fact, I only have two rooms that I rent out. He asked me, he said, 'I want to get a room.' He said, 'My business calls for a room over here.' I said, 'George, I have no room right now.' I expected two fellows to leave who stayed there, and I said, 'Come back next week.'" The witness further testified that Butler did come back the next week and took a front room for which he agreed to pay $6 per week that the room had in it a bed, dresser, wardrobe and rocking chair; that George Butler slept there and stayed about fifteen months, after which time he left and went to St. Louis. She further testified that he would be away during the week ends, from Friday until Monday. On cross-examination, it was brought out that Mrs. Huggens testified as a character witness for Butler at the trial of the divorce case. It was also shown that Mrs. Huggens had been convicted in St. Louis for petit larceny in 1920 and had served a term in the penitentiary at Joliet, Illinois. On re-direct examination the witness testified that Eugene Tebeau, one of plaintiff's witnesses, told her some time before the trial that if she testified in the case he would get her "bumped off." Tebeau denied making such threat.
James R. Crowley, testifying for defendants, stated that he visited George Lee Butler in the latter's room at 502 — a Missouri Avenue in September or October, 1945, and again during the first week of December, 1945.
James A. Cavanaugh testified that in November, 1945, he met George Lee Butler at the Broadview Hotel in East St. Louis, Illinois, and, after talking with Butler for some time, drove him to Fifth and Main Streets. He stated that Butler said he lived at Fifth Street and Missouri Avenue.
Plaintiff's daughter, Georgia Lee Butler, testified that she and her mother moved to 5949 Maple Avenue in 1944. Plaintiff's mother, Mrs. Parsons, and a grandchild — the daughter of Mrs. Parsons' son — also lived at this address. Georgia Lee further testified that she saw her father at the Maple Avenue address in January, February, March, April, May and June, 1945; that in 1946 her father came to the place where she and her mother lived about three or four times a month; that her mother was not always at home when her father called, but when her mother was there she and her father would hold conversations with each other. It also appears from the evidence that during the first six months of 1945 George Butler gave his daughter seven war bonds of the face amount of $25 each. The daughter testified that her father delivered these bonds to her at her home. These bonds were introduced in evidence. Each one was made out to "George L. Butler or Miss Georgia Lee Butler, 6203 Flint, St. Louis, Missouri." Georgia Lee also testified that for Christmas, 1944, her father gave her a watch, and for the Christmas, 1945, he gave her $20. She stated that he came to her home to make these gifts and that her mother was present on both occasions.
Mrs. Vina Arnold, who lived in the upstairs apartment over the one occupied by plaintiff at 5949 Maple Avenue, and who was a close friend of plaintiff, testified on behalf of plaintiff. Mrs. Arnold stated she saw George Butler at plaintiff's home at Christmas time in 1944, 1945 and 1946; that she saw Butler there in April and May, 1946, and in February, 1945, when Mrs. Parsons died.
Wanda Arnold, the sixteen year old daughter of Mrs. Vina Arnold, also testified that she saw George Lee Butler at plaintiff's house at 5949 Maple Avenue during Christmas time in 1944, 1945 and 1946.
James Cavanaugh testified that in 1947 he was a bartender at a place called St. John's Tavern at 4984 Natural Bridge Road; that Marion Butler, accompanied by a man, came into the tavern the 5th or 6th of January, 1947. The witness gave this further testimony:
"Q. I will ask you whether or not you had any conversation with her at that time concerning George Butler? A. Yes, I did. I went over to play the juke box and this gentleman went into the wash room and she told, me she said, 'Did you hear about Butler getting a divorce and marrying Annabelle?' I said, 'Yes, I did.'
* * * * * *
"Q. Did you know who the gentleman was, Mr. Cavanaugh? A. It was Gene Tebeau."
Michael Foglia had a discussion with plaintiff in the early part of 1947 about the marriage between George Lee Butler and Annabelle. Foglia testified: "Well, she told me that she didn't see how he could get married, that they weren't divorced, and that he had established a residence in East St. Louis, which was not legal. * * * We several times discussed it."
The decree of divorce was entered on May 17, 1946, by the Circuit Court of St. Clair County, Illinois. On December 12, 1946, George L. Butler married Annabelle Walsh.
According to plaintiff's evidence, George Butler died intestate in July, 1947, leaving an estate subject to administration.
On November 21, 1947, plaintiff filed suit in the Circuit Court of the City of St. Louis to annul her marriage to Michael Foglia. The court denied the relief sought in the annulment suit, and dismissed with prejudice plaintiff's petition therein. The present suit was filed June 16, 1948.
Plaintiff, Marion Butler, took the stand to testify on her own behalf. After plaintiff had testified concerning her place of residence and her marriage to George Butler, counsel for defendants objected to any further testimony by plaintiff except as to matters which occurred subsequent to the appointment of the administrator of the George Butler Estate. In making the objection, defendants' counsel invoked the "Dead Man" statute, Sec. 1887, R.S.Mo. 1939, Mo.R.S.A. § 1887. The court, in response to the objection, stated: "I will overrule it at this time." Plaintiff then testified, subject to said objection, that she was married to George L. Butler on October 27, 1926, at St. Charles, Missouri, and lived with him as his wife until 1932 or 1933; that she did not leave her husband, but that he was sent to the penitentiary in 1932 or 1933, and that she did not live with him thereafter.
Plaintiff further testified that she lived at 5949 Maple Avenue in the City of St. Louis and had lived at that address for about five years; that in 1931, 1932 and 1933, she and her husband, George L. Butler, lived at 6253 North Drive in University City with her father and mother; that in 1942 she moved to Geraldine Avenue, where Mr. Butler would visit her about once a month; that in 1944 she moved to 5949 Maple Avenue, where George L. Butler visited her about every three weeks until he died on July 18, 1947. Plaintiff further stated that one child, Georgia Lee, was born of her marriage to George Butler. Georgia Lee was born November 21, 1930.
Plaintiff then gave the following testimony, which was stricken upon motion of defendants' counsel:
"Q. * * * You say that Mr. Butler visited you at 5949 Maple Avenue regularly up till the time of his death? A. Yes.
* * * * * *
"Q. From the time within the last two years prior to Mr. Butler's death, did Mr. Butler ever talk to you and ask you to permit him to get a divorce or for you to get a divorce? A. Yes.
* * * * * *
"Q. Were you ever employed, Mrs. Butler? A. Yes, I was.
"Q. And were you ever employed at the Worth Hollywood Shop? A. Yes.
* * * * * *
"Q. How long did you work there, Mrs. Butler? A. Five years.
"Q. And did Mr. Butler ever call upon you there at this Worth Shop where you were employed? A. Quite a few times.
* * * * * *
"Q. Where was this place located — Worth Hollywood Shop? A. 5977 Easton.
"Q. How many times would you say, Mrs. Butler, that Mr. Butler called upon you there? A. Numerous times."
To each of the foregoing questions defendants' counsel objected — "not only upon the ground that she is disqualified as to all things prior to the appointment of the administrator, but also because that relates to a transaction or at least an episode happening to a man who is dead and who, if he was alive, would be competent to testify to that fact. Independently of the first ground, I urge this testimony would be objectionable and not admissible because it relates to a matter transpiring alone between these two parties."
The court sustained the foregoing objection and struck out the testimony given. Plaintiff's counsel then made the following offer of proof:
"Mr. Ballak: I offer to show by this witness that for at least two years prior to the time this divorce suit was filed in Belleville, Illinois, that Mr. Butler, the deceased husband, called at her home on numerous occasions and asked her to either permit him to get a divorce or for she to get one. He also called upon her at her place of business at the Worth Hollywood Shop at 5977 Easton Avenue, and also at that place asked her either to get a divorce or to permit him to get one. I offer to prove that by this witness.
"Mr. Hausman: And I object to the offer of proof for the reasons which I have heretofore stated.
"The Court: Sustained."
Plaintiff further testified that she first learned that George L. Butler had obtained the divorce about a week after he died; that there were never any papers with reference to that divorce served upon her; that she received no papers through the mail; that she was not present in court on May 17, 1946, when the divorce suit was heard at Belleville, nor did she receive any notice of any kind that the suit was going to be heard.
Plaintiff further testified that she saw George L. Butler in the store where she worked about three times in April and May, 1946, at which time he said nothing about obtaining a divorce from her in Belleville.
Plaintiff further testified that during the month of May, 1946, George Butler was at her home, and that she thought he was there in April on one occasion; that he would come to her home two or three times a month; that at Christmas time, 1945, he was at her home at 5949 Maple Avenue.
The court sustained an objection to the following offer of proof made in connection with plaintiff's testimony:
Mr. Ballak: Now, if the court please, I want to make an offer of proof. I offer to show by this witness that she went to 6203 Flint Avenue and saw Mr. Butler, her husband, at that time and prior to this divorce.
"Mr. Hausman: And I object to that — rather, I object to the offer of proof for the same reasons I have heretofore stated.
"The Court: Sustained.
"Mr. Ballak: If the court please, I offer to show by this witness that the deceased here, this witness' deceased husband, never at any time from the time he left the penitentiary ever supported her or her child but that during that time he did from time to time make presents to the child of various things, either money or other presents, and if this witness were permitted to testify she would so testify.
"Mr. Hausman: I object to the offer of proof, if Your Honor please, for the reasons I have heretofore stated.
"The Court: Sustained.
* * * * * *
"Mr. Hausman: I will now make a motion to strike all the testimony of this witness which relates to anything that happened prior to the appointment of the administrator in this case.
"The Court: All right, sustained."
Appellant's first complaint is that the trial court erred in sustaining defendants' motion to strike from the record the foregoing testimony of plaintiff.
The record shows that defendants' objection to plaintiff's testimony was based upon the following portion of Section 1887, R.S. Mo. 1939, Mo.R.S.A. § 1887: "* * * and where an executor or administrator is a party, the other party shall not be admitted to testify in his own favor, unless the contract in issue was originally made with a person who is living and competent to testify, except as to such acts and contracts as have been done or made since the probate of the will or the appointment of the administrator".
In our judgment, the court did not err in its ruling with respect to plaintiff's testimony. The portion of the statute relied upon by defendants' counsel in support of his objection to the testimony, and as a basis of his motion to strike, has been construed many times by the appellate courts of this state as an arbitrary provision, not open to construction, which closes the mouth of the living party to the cause of action on trial as to all matters that occurred prior to the probate of the will or the appointment of the administrator, regardless of whether the other party, if living, could testify to the same matter. Leeper v. Taylor, 111 Mo. 312, 19 S.W. 955; Kersey v. O'Day, 173 Mo. 560, 73 S.W. 481; Weiermueller v. Scullin, 203 Mo. 466, 101 S.W. 1088; Davis v. Robb, Mo.App., 10 S.W.2d 680; Grassmuck v. Ehrler, Mo. App., 207 S.W. 287; Geisendorfer v. Geisendorfer, Mo.App., 227 S.W.2d 470.
Appellant contends that she was competent to testify in her own behalf so long as she did not testify to any contractual relation with her deceased husband. This contention is not sound. The statute is not limited to matters ex contractu. Lieber v. Lieber, 239 Mo. 1, 143 S.W. 458; Leavea v. Southern R. Co., 266 Mo. 151, 181 S.W. 7, L.R.A. 1916D, 810; Freeman v. Berberich, 332 Mo. 831, 60 S.W.2d 393.
In the Lieber case, supra, plaintiff brought suit to set aside a deed executed by one Alexander Lieber, deceased, conveying his homestead on the ground that she was his wife at the time and did not join in the deed. Whether the plaintiff was the wife of Alexander Lieber depended upon whether a divorce decree rendered by an Illinois court was valid. Plaintiff contended, as in the case at bar, that the decree was fraudulently obtained — the fraud pleaded being that Alexander Lieber falsely represented to the Illinois court that he had been a resident of the State of Illinois for more than two years next preceding the filing of the suit.
Our Supreme Court held in the Lieber case, supra, that the decree of divorce was in issue and on trial, and, since Alexander Lieber was dead, the plaintiff was not a competent witness in the case to testify "to matters regarding or tending to impeach the decree of divorce rendered by the circuit court of Mercer county, Ill., in the case of Alexander Lieber against Margaret Lieber, the defendant there, and the plaintiff here." [239 Mo. 1, 143 S.W. 466.]
It is next contended that the Illinois court was without jurisdiction to render the decree of divorce for the reason that George L. Butler was not a bona fide resident of the State of Illinois at the time he filed the suit. Judicial power to grant a divorce is founded upon domicile. Williams et al. v. State of North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 157 A.L.R. 1366. And, it is a well settled rule that a foreign divorce decree may be challenged in this state in a collateral proceeding on the ground that the court rendering the divorce decree was without jurisdiction of the subject matter or parties. Leichty v. Kansas City Bridge Co., 354 Mo. 629, 190 S.W.2d 201.
The nature of this action requires us to review the case both upon the law and the evidence, and reach our own conclusion as to the proper disposition of the case. At the same time, on matters where the evidence is conflicting, it is our duty to give due regard to the findings of the trial court by reason of his better opportunity to judge the credibility of the witnesses. We must also bear in mind that the rule is thoroughly established in this state that in order to vitiate a judgment of a court of competent jurisdiction upon the ground of fraud in the procurement of the judgment, such fraud must be shown by clear, strong, cogent and convincing evidence, leaving no room for reasonable doubt of its existence. Nieman v. Nieman, Mo.App., 127 S.W.2d 34; Reger v. Reger, 316 Mo. 1310, 293 S.W. 414; Lewis v. Lewis, 238 Mo.App. 173, 176 S.W.2d 556. We have considered the evidence in this case with these rules in mind.
The evidence with respect to the domicile of George L. Butler at the time he filed the divorce suit was highly conflicting. The testimony of Georgia Lee Butler, plaintiff's daughter, was of very little value. She merely testified that her father lived on Flint Avenue when she visited him some time in 1945. The exact dates of her visits were not specified — the witness stating: "It was in the wintertime." This evidence clearly does not prove that George Butler was not a resident of St. Clair County, Illinois, for one whole year prior to April 12, 1946, the date the divorce suit was filed. The only other witnesses who testified on the issue of George Butler's domicile were Catherine Tebeau and her son, Eugene Tebeau. Catherine Tebeau, in effect, said she knew that George Butler lived at 3933 Ashland Avenue because she went to that address to see him and did see him coming down the stairs there. The credibility of the testimony of this witness was greatly impaired by her testimony on cross-examination, which showed she harbored ill feeling against Annabelle Walsh Butler on account of having been dispossessed of her home by Annabelle. In our judgment, the credibility of the other witness, Eugene Tebeau, was also very weak. He was at one time the husband of Annabelle, and admitted that he was not friendly in his feelings toward her.
We believe that, considering the evidence offered by plaintiff and that produced by defendants, the weight of the credible evidence on the issue of domicile preponderates in favor of the defendants.
Finally, it is urged that the Illinois divorce decree was void because of fraud practiced upon the court by George L. Butler in obtaining the order of publication in said cause by the filing of a false affidavit.
By Section 138, Chapter 110, Smith-Hurd Ann.Statutes, it is provided, in substance: "Whenever * * * plaintiff or his attorney shall file, at the office of the Clerk of the court in which his suit is pending, an affidavit showing that the defendant resides * * * out of this State * * * and stating the place of residence of such defendant, if known * * * the Clerk shall cause publication to be made in some newspaper published in the county * * * containing notice of the pendency of such suit, the title of the court, the title of the case, showing the names of the first named plaintiff and first named defendant, the number of the case, the names of the parties to be served by publication, and the date on or after which default may be entered against him; and he shall also, within ten days of the first publication of such notice, send a copy thereof by mail, addressed to each such defendant whose place of residence is stated in such affidavit."
The affidavit filed in the divorce case upon which the order of publication was issued gave the last known address of the defendant therein as: "6253 North Drive St., University City, Missouri." The defendant in said case, at the time said affidavit was filed, did not live at the address given, but according to her evidence resided at 5949 Maple Avenue in the City of St. Louis. Defendants, in the case at bar, offered no evidence as to where plaintiff resided at said time, but showed, by cross-examination of Michael Foglia, that plaintiff was registered at 711 Bayard Avenue in the City of St. Louis.
If the statement as to plaintiff's residence contained in the affidavit which George Butler filed in the divorce case was false, and if the evidence disclosed that George Butler knew where his wife lived at the time, we would be compelled to hold that he practiced a fraud — not only upon the Illinois Court, but upon plaintiff as well, and that the judgment was not valid. Callner v. Greenberg, 376 Ill. 212, 33 N.E.2d 437, 134 A.L.R. 1485.
It is not sufficient to merely show that the statement contained in the affidavit was untrue. Connely et al. v. Rue et ux., 148 Ill. 207, 35 N.E. 824; Nieman v. Nieman, Mo.App., 127 S.W.2d 34.
The Nieman case, supra, was an action in equity to set aside a divorce decree on the ground that it was void by reason of false statements contained in the affidavit upon which publication was had. The trial court found for defendant and this court affirmed. In passing upon the case, this court, speaking through Sutton, C., said: "The rule is thoroughly established in this state that in order to vitiate a judgment of a court of competent jurisdiction upon the ground of fraud in the procurement of such judgment, such fraud must be shown by clear, strong, cogent, and convincing evidence, leaving no room for reasonable doubt of its existence. Reger v. Reger, 316 Mo. 1310, 293 S.W. 414, loc. cit. 420, 421. * * * However, the ultimate issue is not whether that allegation was true or untrue, but whether it was made by respondent knowing it was untrue, or without knowing or having reasonable ground to believe it was true, in other words, whether it was fraudulently made. If the solemn judgment of a court of competent jurisdiction could be set at naught on a mere finding that the allegation on which an order of publication was made was untrue, then there would be such instability in judgments obtained on orders of publication as to defeat the purpose of the statute authorizing such orders." Nieman v. Nieman, Mo.App., 127 S.W.2d 34, loc. cit. 36.
We do not believe that the evidence adduced by plaintiff herein has met the requirements of the above rule. She did not produce clear, cogent and convincing evidence to show that George Butler knew where she actually lived at the time the divorce suit was filed. It is true that she produced convincing evidence that George Butler visited at 5949 Maple Avenue, but it is quite clear that he visited his daughter there, who may have been living with her grandmother at that address. It is not clear beyond a reasonable doubt that plaintiff actually resided at 5949 Maple Avenue, or that George Butler knew where she actually lived. She had gone through a marriage ceremony with Michael Foglia several years before, and was registered from an address on Bayard Avenue. Taking these facts into consideration, and giving due deference to the finding of the trial court, we feel compelled to hold that plaintiff failed to establish the fraud relied upon.
The judgment appealed from is affirmed.
McCULLEN and BENNICK, JJ., concur.