Opinion
02-20-1900
POTTS v. POTTS.
Charles B. Storrs, for complainant. John R. Hardin, for defendant.
Suit by Earl Clinton Potts against Annetta S. Potts. Defendant demurs to the bill. Demurrer overruled.
Charles B. Storrs, for complainant.
John R. Hardin, for defendant.
REED, V. C. The bill attacked is an amended bill. The original bill, to which a plea was filed, was before this court some months ago, and the result of the argument then had upon the sufficiency of the plea is to be found in my conclusions reported in 42 Atl. 1055. Both the original and the amended bill attacked a decree of divorce which the defendant, Annetta S., had procured in the state of South Dakota. Among the grounds of attack were two, namely, firstly, that Annetta S. had no domicile in South Dakota; and, secondly, that she has fraudulently procured the decree. A number of facts were set out in the former bill, all bearing upon the matter of her domicile; but, inasmuch as they were stated for the express purpose of showing the absence of domicile merely, and not for the purpose of showing that the South Dakota court could never have found that Annetta S. had a domicile there, unless the court had been imposed upon, it was ruled that those facts were not well pleaded for the purpose of avoiding the decree on the ground of fraud. Those facts are set out in the amended bill, not only to show that Annetta S. was not domiciled in fact in South Dakota, but to support the charge that the court was led to find that such domicile existed by the fraudulent acts of the defendant. The counsel for the demurrant insists that the facts so stated are Insufficient to support the charge of fraud. Without a repetition of the facts so displayed in connection with the charges made, I think that, in the light of the cases which our recent Reports furnish, the bill contains ample statements to support the charge that the decree was fraudulently procured. I will observe that I doubt the correctness of the views expressed in my former conclusions in respect to the conclusiveeffect of the finding by the Soutb Dakota court as to domicile, in the face of the charge in the former bill that Annetta S. had in fact no domicile in that state, coupled with the want of service of process upon the present complainant within the limits of that state. The case of Felt v. Felt, 57 N. J. Eq. 101, 40 Atl. 436, which had been already decided in this court, had put the conclusiveness of such a decree upon the presence of cither actual domicile or service of process within the state or general appearance by the defendant in the suit. This case was recently affirmed. 45 Atl. 105. The demurrer should be overruled.