Dorrance v. Dorrance

BROWN, C.

There are two appeals in this case. The plaintiff appeals from the final judgment of the circuit court dismissing her petition upon her refusal to plead further after a general demurrer had been sustained. The defendant afterwards appealed, during the pendency of the case in this court, from an order of the trial court entering upon its records a statement nunc pro time in said cause as follows: “Amended petition filed May 17,1907.”

The second appeal being for the purpose of enabling the court to judge of the true state of the record, it is plain that they should both be tried together, and it has been so ordered.

The case is a suit in equity to set aside a decree of divorce in the circuit court of the city of St. Louis in favor of this respondent and against the appellant. It was instituted by the filing of the petition in the St. Louis Circuit Court on April 27,1907, returnable at the succeeding June term, to.which the defendant entered his appearance by stipulation, dated May 3, 1907.

The original petition contained no mention of the Constitution of the State of Missouri, or of the United States.

The nunc pro tunc entry set out above, refers to the amended petition copied in the appellant’s ab *636 stract, and which, the appellant claims, and the court found, was filed in the office of the clerk on the day mentioned in the order.

On the hearing of the motion asking for the entry nunc pro tunc, Mr. Alexander M. Lewis, the chief deputy clerk of the St. Louis Circuit Court, was called and asked to identify certain entries and marks on the back of the amended petition, and stated that he placed thereon the following: “254 Series A, June term, 1907, Div. 9;” that this was done on or before the Saturday which was the last day for the filing of suits for the June term, and indicated, according to his uniform method, that the cause at that time was assigned by him to division 91 of the court. He also stated that the figures 45794, the serial number of the case must, in accordance with such method, had been placed by him on the pleading as early as the week before the first day of the June term.

The following entry, about the genuineness of which no question has been suggested, also appears on the back of this pleading: “Copy received this 17th day of May, 1907.” (Signed) “Martin A. Seward, C. B. Crawley, Attorneys for defendant.” These are the same attorneys who entered defendant’s appearance, and Mr. Seward signed the demurrer, from the action of the court upon which the appeal was taken.

The amended petition states, in substance, that the plaintiff is, and was at all times mentioned in it, the wife of the defendant, who on or about May 25', 1906, and during the April term, filed in the circuit court for the city of St. Louis a suit for divorce against plaintiff, returnable to the October term, 1906, in which it was alleged, as grounds for divorce, that the plaintiff had, for the space of one year, absented herself from him without reasonable cause: that she had offered him such indignities as to render his condition intolerable; and that at the time of her marriage with him she was, and still remained, impotent.

*637 That on the first day of June, 1906-, and at the April term of said court, he presented to the judge of Division Nine his affidavit, wherein it was alleged that plaintiff had absconded from her usual place of abode, and that although he had diligently sought to locate her he was unable to do so, or to learn her whereabouts, and that she had concealed herself so that the ordinary process of law could not be served on her in this State, and praying an order that notice of the suit be given by publication. That each recital of said affidavit was false; that plaintiff had not absconded or concealed herself, and that her actual residence and address, which-was in the city of Kansas City, State of Missouri, was at the time well known to him; that he, for the purpose of attempting to secure a decree of divorce from her without her knowledge, so that she would not have the opportunity to appear and defend, and defeat the said suit, and for the purpose of falsely and fraudulently conferring a pretended jurisdiction on said court over her person, falsely and willingly made the said affidavit, knowing that the same was a fraud on the court, and on this plaintiff and her most sacred rights.

That the judge of court was deceived by said false affidavit, and, on the last named date, made an order directing that notice of the suit be given by publication in a newspaper published in the city of St. Louis; that a publication purporting to be the order of the court was published four times in the “Star-Chronicle,” but said publication was not a. lawful notice to plaintiff of the bringing of said suit, because it was based on said false affidavit; because said publication was preceded by a statement that the order wa,s made at the June term, whereas it was in fact made at the April term; and because it failed to set out the grounds of divorce alleged in the petition, and was therefore insufficient to confer jurisdiction on the court.

*638 That afterward, on the 8th day of October, 1906, and at the October term, default was entered against her, and the cause set for hearing ex parte; that she was in entire ignorance of the fact that such suit had been brought, or that such publication had been made; that on or about the 9th day of November, 1806, a final decree purporting to dissolve the marriage and restore him to all the rights of an unmarried man was entered by said court; and that she had neither lawful notice nor actual knowledge of the pendency of said divorce suit, nor of the granting of said decree of divorce, until about the 10th day of April, 1907, long after the term at which the same was rendered had elapsed.

That this defendant, the plaintiff in said suit, was not, at the time of filing said suit, nor at any other time, a bona fide resident of the city of St. Louis, but was then and ever since, a resident of Chariton county, Missouri; and the averment in his petition that he was a resident of the city of St. Louis was falsely and fraudulently made, in order to give a colorable jurisdiction to this court, which could not acquire jurisdiction of said cause as against this plaintiff, who was also not a resident of said city, but resided at the time in Kansas City, Jackson county, Missouri. That the alleged grounds of divorce set up in said petition are, as defendant well knows, each and every one untrue in substance and in fact, and that she has actual disproof of the same, and a just and sufficient defence to the pretended cause of action.

The petition then pleads that the notice set forth and proceedings under the same do not constitute due process of law, and that “section 2932 of the Revised Statutes of Missouri of 1899, purporting to prohibit the review or vacating of any decree of divorce after the term of court at which the same was rendered, is not applicable to a void decree rendered without jurisdiction of the cause of action and of the person of the defendant or upon an assumption of jurisdiction falsely *639 and fraudulently obtained, as in tbe ease of tbe decree sought to be avoided; but plaintiff avers that if said statute is so to be construed as to apply to the decree purporting to be rendered against plaintiff as defendant in said cause', then said statute is unconstitutional and void, in that it operates-to deprive this plaintiff of her civil and property rights as the lawful wife of the said John Dorrance without due process of law and denies to her the equal protection of the law in contravention of the 14th Amendment of the Constitution of the United States and of section 30 of article 2 of the Constitution of the State of Missouri.”

That the decree is further fraudulent and void and- subject to be avoided in this action, because the several charges and allegations in the petition, and the evidence adduced at the hearing, are false and fraudulent in the following particulars: that the allegation and testimony that the plaintiff therein was a resident of the city of St. Louis, was false, and made solely to defraud this court into assuming jurisdiction, whereas he at all times resided near Keytesville, Chariton county, Missouri. That the allegation and testimony that he faithfully demeaned himself, and discharged all his duties to this plaintiff, and treated her with kindness and affection, are wholly false, because for several years prior, he had, without plaintiff’s knowledge, lived in open and notorious adultery with a negro woman named Lena Robertson, whom he maintained in a house built for her on a farm belonging to plaintiff, and once, in the absence of plaintiff, installed her in the family home, and at the time he was pretending to reside in St. Louis while said divorce case was pending he lived with said negro woman and her two children in a house which he provided for her at No. 830 Nebraska Avenue, Kansas City, Kansas, to the great scandal of the respective neighborhoods. That during the summer of 1906, pretending to plaintiff that be was going to the Indian Territory on business, *640 he went, instead, to London, England, where he represented to a young English woman of that place named Florence Mason that he was unmarried, and • promised to marry her, procured her to come with him to Kansas City, where under said promise of marriage, he seduced and had frequent sexual intercourse with her; hut when she learned he was a married man she filed suit against him, which is now pending in the circuit court of Jackson county, Missouri, for $50,000 damages for breach of said promise. That he also, on August 28, 1905, procured a woman to impersonate plaintiff in the execution and acknowledgment, before one George Cassidy, a notary public, of a deed of trust on her lands to secure, a loan of $10!,000 in favor of the Mutual Life Insurance Company. That about the 12th day of November, 1905, the plaintiff discovered for the first time the facts above stated respecting the relations of the defendant with the negro woman Lena, and Miss Mason, and the forgery of said deed of trust, and has since that time lived apart from him.

The plaintiff asks that the decree of divorce be declared fraudulent and void, that it be vacated, set aside and for naught held, and that she be restored to all her lawful rights as the legal wife of defendant, and for general relief.

On June 27, 1907, the defendant filed a general demurrer, which was sustained by the court, which thereupon, the plaintiff declining to plead further, rendered final judgment dismissing the petition, and for the recovery of costs by the defendant, from which this appeal is taken.

I. The question preliminary to all others in this case is whether or npt the amended petition is a part of the record. The respondent’s attorneys do not question the fact that by written authority of their client, dated April 30,1907, they entered into a stipulation dated May 3, 1907, for the entry of his appear *641 anee to this suit, nor that on the 17th day of May, 1907,. they received a copy of the amended petition in question. Nor do they question the statement of Mr. Lewis, the chief deputy clerk of the circuit court, that the paper was in his hands and had been indorsed by him with its serial and term numbers, and its divisional assignment, at some time before the beginning of the June term. They do say, however, that although these facts may exist, they do not constitute such evidence as authorizes the entry nunc fro tunc, which could only be made upon the evidence of minutes and other writings constituting records of themselves. They say in substance that after the close of the term during which a judicial act is done, such things can only be shown by the records, and that the amendatory power of the court over-its records is then limited to the formal statement of that which the record already informally shows.

We find it unnecessary to enter into a critical examination of this doctrine, because it has reference only to the judicial acts of the courts and not to the ministerial acts of its officers. The plaintiff had the right, as a matter of course, to file the amended petition at any time before an answer or reply should be filed (R. S. 18991, Sec. 661), and that this could be done before the return day of the summons or other original notice is not questioned. The only question is upon the evidence necessary to show that it was filed. It is plain that if it had been filed before the demurrer, it had superseded the original petition, and become the only pleading to which that demurrer could apply. The statement of the clerk on the back of a paper of the fact and date of its filing is not a statement of any act of the court, but a statement by him of his own act as a ministerial officer. This court in Baker v. Henry, 63 Mo. 519, in considering the same question said: “The mere indorsement by the clerk on the *642 paper is not the sole constituent .element of filing that paper • for in legal contemplation the presentation and delivery of the paper to the court or officer is the filing,which dates from its receipt by the clerk and lodgment in his office, although the clerk’s indorsement is the highest legal evidence of the filing; and that indorsement being merely ministerial, is amendable at common law.” In Grubbs v. Cones, 57 Mo. 83, the court said: “But it is contended that the indorsement was a part of the record, and it could not be altered or changed. The date of the filing becomes material, for on it depends the validity of the lien. . . . The indorsement though required to be made by the clerk when he receives a paper, does not constitute the filing of the same. The filing is the actual delivery of the paper to the clerk without regard to any action that he may take thereon. If the clerk commits a clerical error, or makes a mistake in reference to the time at which he received-the paper, that will not make any difference. He may indorse upon it the wrong date, ox* an impossible date, and still the real date of the filing will be the same. ” In Bennet v. Hall, 184 Mo. 420, Valliant, J., delivering the opinion of this court, said: “If the clerk had left the original petition on his table .after the adjournment of court, and one of the petitioners had taken care of it in the same way he did of this map, that action would not have rendered the paper when satisfactorily identified any the less a part of the files of the case.” And in Pullis v. Summerville, 218 Mo. 635, the same judge, in speaking of the oath of a referee taken before the clerk, said: “But when taken before the clerk and left with him it is filed; the indorsement ‘filed’, by the clerk, is only evidence of the fact. In Grubbs v. Cones, 57 Mo. 83, the court said: ‘The filing is the actual delivery of the paper to the clerk without regard to any action that he may take thereon.’ ”

*643 The same principle is involved in the amendment of a sheriff’s return, which stands on the same footing as the indorsement of the clerk upon papers filed in his office, in the respect that it is the statement, by an executive officer, of his own act, and not of the act of the court. [Judd v. Smoot, 93 Mo. App. 289; Martin v. Castle, 182 Mo. 216.] These statements or returns were always amendable at common law, and the authority to direct their amendment is derived not only from the common law control which every court has over the truth of its own records, but is secured to the courts of our State by statute (R. S. 1909, Sec. 1861). In the exercise of this supervision the court, in this case, has found, from evidence which not only amply supports its conclusion, but remains undisputed, that the amended petition was on file long before the.filing of defendant’s demurrer, and we are bound by this finding, and must treat it as the pleading to which the demurrer is directed.

II. The respondent challenges the jurisdiction of this court on the ground that it does not appear from the record that this is a case “involving* the construction of the Constitution of the United States or of this State.” He also elected to present his cause in such a way as to admit all the allegations of the petition, which, in the consideration of all the questions that arise upon this appeal, we must therefore asume to be true. It sets forth, with detail, that the judgment in question was obtained through a fraudulent scheme, by which the court was deceived, and induced to assume jurisdiction of a matter of which it could not lawfully take judicial cognizance, and that the appellant was, by false swearing and imposition upon the court by respondent, wrongfully and fraudulently kept in ignorance of the proceeding, and from having any opportunity to appear and defend, until the respondent had obtained a final judgment of divorce against her, *644 and the term had elapsed at which it was entered. It also asserts the claim that snch a judgment, so obtained, does not constitute due process of law within the meaning of the State and Federal Constitutions; that for this reason the appellant has the constitutional right to have it annulled in this proceeding; and that if section 2932, Revised Statutes of Missouri of 1899, be so construed and enforced as to protect it, and to prevent its vacation, then said statute operates to deprive her of her property and rights without due process of law, and deprives and denies to her the equal protection of the laws, in contravention of the 14th Amendment of the Constitution of the United States, and of section 30' of article 2 of the Constitution of the State of Missouri.

There can be no question that the court, in sustaining the demurrer, did so upon the ground that the statute so pleaded by the appellant was valid and constitutional, that it applies to the judgment in question, and protects it against this proceeding in equity to set it aside. A careful examination of the briefs of the parties shows that this is the theory upon which the issues raised by the petition and demurrer were tried, and are presented here.

As we have already suggested, the Constitution of this State provides that the Supreme Court shall have exclusive jurisdiction “in cases involving the construction of the Constitution of the United States, or of this State.” Construction is a broad term, and perhaps as instructive a definition as could be stated is quoted from Abbott in Webster’s International Dictionary as follows: “Strictly, the term [construction] signifies determining the meaning and proper effect of language by a consideration of the subject-matter and attendant circumstances in connection with the words employed.” In other words it does not stop with interpretation, but applies the language as interpreted to both the subject-matter and the attendant *645 circumstances. The constitutional provision does not, to give this court jurisdiction in this case, require findings that some constitutional provision has been violated, or constitutional right denied, for that is the ultimate object for which the jurisdiction exists. It is only necessary that a constitutional question be presented to the court in the manner required by the rules governing its practice, and on its presentation the jurisdiction attaches to determine it. This is made clear by Mr. Justice Harlan in Insurance Company v. Needles, 113 U. S. 574. He said: “Our jurisdiction is not defeated, because it may appear, upon examination of this Federal question, that the statutes of Illinois are not repugnant to the provisions of that instrument. Such an examination itself involves the exercise of jurisdiction.” The jurisdiction does not depend upon the validity of the claim set up under the Constitution or laws. It is enough if the claim involves a clear and substantial dispute or controversy. And as to the nature of this claim Mr. Justice White, speaking for the court in Insurance Company v. Austin, 168 U. S. 695, said: “Of course, the claim must be real and colorable, not fictitious and fraudulent. The contention here made, however, is, not that the bill, without color of right, alleges that the Staté law and city ordinances violate the Constitution of the • United States, but that such claim as alleged in the bill is legally unsound. The argument, then, in effect, is that the right to a direct appeal to this court does not exist where it is claimed that a State law violates the Constitution of the United States, unless the claim be well founded. But it cannot be decided whether the claim is meritorious and should be maintained without taking jurisdiction of the case.”

In Cohens v. Virginia, 6 Wheat. 264, Chief Justice Marshall (p. 429) said: “'In such cases the Constitution and the law must be compared and construed. This is the exercise of jurisdiction. It is the only ex- *646 ereise of it which is allowed in snch a case; ’ ’ and, with his usual directness of statement, he says with reference to the jurisdiction of the court over the appeal he was then considering (p. 404): “It is most true that this court will not take jurisdiction if it should not; but it is equally true that it must take jurisdiction if it should.” That is a clear and concise statement of our duty in this case. It has been suggested that our exclusive jurisdiction will be defeated whenever the case assumes such a condition that it may be disposed of on some other point than that involving the consideration of the Constitution of the United States, or of this State. This point is very well answered by the Supreme Court of the United States in Holder v. Aultman, 169 U. S. 81, in which the court determined that it had jurisdiction under the provision of the judiciary act because the case involved the construction of the Constitution of the United States, but found it unnecessary to pass upon the constitutional question because it was of the opinion that the contract involved was not within the statute set up by the defendant. So in this case we may hold that it involves the construction of the Constitution, and assume jurisdiction accordingly without hesitation. We may then decide, should it become necessary in the exercise of that jurisdiction, that the statute about which the contest has thus far gathered has no application to the question presented. As said in the case last cited, the jurisdiction does not depend upon whether the right claimed under the Constitution has been upheld or denied in the court below; and we Add that it may be invoked by either party to the appeal or writ of error; the only condition being that the constitutional question is involved in the case. It goes without saying that if its decision affects one of the parties to the controversy it must necessarily and correspondingly affect the other. Illustrating with the case in hand, let us suppose that this demurrer had been overruled; *647 that the record had been made to show that it was done, not on any constitutional ground, but because the statute invoked by the defendant was held to be inapplicable ; that the cause had been thereupon tried and judgment given the plaintiff under the same holding, she would, thus far, have no cause for complaint and no ground for appeal from or disturbance of the judgment in her favor. But suppose, under such circumstances, the defendant should appeal; then the same old constitutional question would at once leap to a position of the same importance with reference to her rights that it occupied before the decision in her favor upon the demurrer. She would then insist upon it, and insist that this court assume jurisdiction to determine it. If we should refuse, and it should go to the' court of appeals, and that court should decide that the statute she had complained of did apply, it would then be compelled to hold that it had no jurisdiction to pass upon the constitutionality of the act. If it should then reverse the judgment of the trial court and enter judgment dismissing the bill, plaintiff would, without any fault of her own, have lost forever whatever, right she may have had under the Constitution.

We think that the question whether or not the plaintiff has been deprived by the judgment of the circuit court of a constitutional right is not a fictitious one; that it appears from this record that it was fairly and in good faith presented to the court, and was decided against her; and that it is now properly before us for consideration, in the exercise of that branch of our jurisdiction relating to cases involving the construction of the Constitution of the United States and of this State.

III. Section 2381 of the Revised Statutes 1909, enacted November 23, 1855; is as follows: “No petition for review of any judgment for divorce, rendered in any case arising under this article, shall be allowed, *648 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 question for consideration in this case is whether, notwithstanding this statute, a suit may be maintained in the court in which it was rendered to set aside and annul a judgment for divorce obtained upon a fictitious cause of action, in a county other than that in which the plaintiff, or the defendant, who was a resident of this State, resided, upon notice by publication obtained upon plaintiff’s affidavit stating that the facts authorizing such publication existed, which statement was knowingly false, and without appearance or knowledge of the proceeding on the part of the defendant. In other words was this statute intended by the Legislature to prevent the maintenance of an action to set aside and annul a judgment for divorce concocted and obtained by wilful and deliberate fraud; and if it was so intended is it effective for that purpose? The.widespread discussion of the question of reform in the divorce laws of the States, of which, as of all other matters of public-history, we take judicial notice, emphasizes the importance of this question, and gives additional interest to its investigation.

While generally the domestic relation of husband and wife is subject to the control of the Legislature, which may ordinarily prescribe the conditions and limitations under which it may be assumed, and the causes for which it may be dissolved, there are many rights and interests'incident to it which are necessarily objects of private ownership-. Since the act of 1835; by which it was provided that marriage should be considered in-law as a civil contract, we cannot conceive of any right or duty of the parties toward each other growing out of the relation which is not a contract right, and consequently a property right, of which, un *649 der the Constitution, of the United States and of this State, they cannot be deprived otherwise than by due process of law. Even before the act referred to went into effect, this court had decided, in State v. Fry, 4 Mo. 190, that the granting of divorce was a function pertaining to the judicial department of the State, and that an act of the Legislature purporting to grant a divorce was void. This decision was rendered during the August term, 1835, and it was during the session of the General Assembly which convened in September of that year that the law referred to was enacted. The court, in its opinion in that case, called attention to the 7th section of the Bill of Rights of the Constitution of 1820, quoted “that courts of justice ought to be open to every person, and certain remedy afforded for every injury to person, property, or character,” and said: “It appears to me that this declaration of the convention amounts to a strong command and direction to the courts, to entertain, hear and determine all manner of complaint for injuries done to persons, property and character. Is the granting a divorce, a fit subject for judicial action? The General Assembly have expressly made it so, by the act respecting divorces (Rev, Code, 328), and that they have properly made it so I think is clear from the above 7th section of the Bill of Rights. If I am not mistaken in this argument and view, the inevitable result is, that the legislative department of the government cannot grant a divorce, because that involves a question of injury tó person, property, or character, — that the judicial power is expressly charged with this, and that the Legislature are expressly forbidden to exercise any power that properly belongs to another department. ’ ’ After the Act of 1835, Bryson v. Campbell, 12 Mo. 498, came before the court for determination, and in holding a legislative divorce void the court said: “The marriage in question having taken place subsequent to the act aforesaid, and under what we consider its express guaran *650 ties, to sanction the legislative competency to interfere with snch a ‘contract’ would be'scarcely less objectionable upon the score of public justice, than it has heretofore been deemed to be incompatible with public policy and the constitutional distinction of the powers of government. ’ ’ The question was again here in 1853, in Bryson v. Bryson, 17 Mo. 590, in which the only syllabus, the shortest perhaps in the reports of our cases, is.as follows: “A legislative divorce is unconstitutional. ’ ’ In that case Gamble, J., in closing his opinion, says: “Whatever of trouble and confusion may result from maintaining the decision of the State v. Pry, will not be attributable to any novel or unexpected opinions on the law. Those who either had not legal cause for seeking a divorce, or were in too great haste to wait to the end of regular judicial proceedings, and have, therefore, resorted to the Legislature to obtain release from iheir bonds of matrimony, must be contént to take the acts they have obtained, without expecting courts to maintain their validity against the Constitution of the State.”

In 1865 the people of the State expressed their will upon the question by incorporating in the Constitution of that year (article 4, section 27) a provision forbidding the General Assembly to pass special laws divorcing any named parties. Had there been up to that time any question as to whether the granting of divorce was a legislative or judicial function, the people, by that provision, decreed that thereafter all divorces should be granted in pursuance of general laws through judicial inquiry and action. There can be no longer any doubt that in this State the rights and interests growing out of the marital relation are entitled to the same protection, by the same constitutional guar- . anties, as those incident to the business relations, and that this most sacred and far reaching of contracts, which secures not only strictly property interests so called but carries its rights to maintenance, protection, *651 and the society of each other, which are, in onr courts, frequently measured in money judgments, is protected by those provisions of the Constitutions of the United States and this State, which provide that no person shall be deprived of life, liberty or property without due process of law. Whether a, judgment, concocted in fraud, rendered in a case of which the court is induced to assume jurisdiction by the perjury of the plaintiff, without any notice to a defendant who was in law entitled to such notice, and founded on a claim entirely fictitious, is sufficient to constitute due process of law within the meaning of these provisions; and whether a statute which compels the defendant in such a judgment to respond to it by immediately depriving her of every possible remedy, constitutes such process, would seem to carry its own answer. Due process of law, like the law of the land, is a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial (Mr. Webster in Dartmouth College v. Woodward, 4 Wheat. 518); and these constitutional provisions were intended to secure the individual from the arbitrary exercise of the powers of government unrestrained by the established principles of private right and distributive justice. [Bank v. Okely, 4 Wheat. 235.] To try the initial question, whether or not the defendant has been duly notified of the proceeding, in her absence, and to secure a finding against her contrary to the fact, upon wilfully false testimony, cannot of itself be due process of law, but is a fraud upon the court, for the purpose of depriving the defendant of the opportunity to be heard, which is the foundation of all legal process.

Fraud will vitiate any, even the most solemn transactions, and an asserted title to property founded upon it is utterly void. [Story, J., in United States v. The Amistad, 15 Pet. 518, 594.] Neither judgments at law nor decrees in equity are exempt from the operation of this rule. [Lewis v. McCabe, 76 Mo. 307, 309 and cases *652 cited; Story’s Equity Jur. (13 Ed.), 261, sec. 252; Freeman on Judgments, secs, 250; 591.] Relief may be had from it not only in equity, but it constitutes a defense at law, so that no judgment can be recovered on a cause of action tainted with fraud. Innocent persons may be protected by a judicial record, but as between the parties themselves, whatever the transaction may be, it is void. Yet in .this case it is attempted to give validity to the thing in favor of the party'guilty of its perpetration, by using as an instrument the statute which we have quoted at the beginning of this paragraph. The part of the section (2381, Revised Statutes 1909) relied on for that purpose is as follows: “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. ’ ’ In construing this we must not only take into consideration the words to be interpreted and applied, but, “whatever may be the language of the Legislature, we are bound to presume that they intended to keep within the limits of the Constitution, and to restrict the operation of statutes to cases where they may have effect consistently with the Constitution.” [Kennett’s Petition, 24 N. H. 141.] “In all such cases it must be understood that no Legislature could have intended to violate the Constitution, or to tread under foot the great principles of justice. And such a proviso, limiting the construction of the statute, must be implied, as will prevent injustice, and give to all parties a reasonable opportunity for the prosecution of their rights. ” [Willard v. Harvey, 24 N. H. 354.] “If there is doubt or uncertainty as to the meaning of the Legislature, if the words or provisions of the statute-are obscure, or if the enactment is fairly susceptible of two or more constructions, that interpretation will be adopted which will avoid the effect of unconstitutionality, even though it may be necessary, for this purpose, to disregard the more usual or apparent im *653 port of the language employed.” [Black on Interpretation of Laws (2 Ed.), see. 41, p. 113 and cases cited.]

Our Code of Civil Procedure is necessarily a composite structure, consisting of rules which, as far as practicable and consistent with the due administration of justice, are applicable alike to all controversies which had, before its adoption, been heard and determined according to the procedure at common law and in equity. After a judgment had been recorded at law, and the term had elapsed at which it was rendered, it could only be disturbed in the court that rendered it, by motion founded upon some defect or irregularity apparent in the record, or by motion in the nature of a writ of error cor am nobis founded upon some jurisdictional fact not appearing in the record. Otherwise the remedy was by writ of error prosecuted in a court having jurisdiction to correct the errors of the trial court. In equity, application could be made to correct a decree in the court that rendered it, by a supplemental bill in the same ease, called a bill of review. This could be founded either, first, on error apparent upon the record, or, second, on newly discovered evidence. In the first instance the sustaining of the bill operated like a writ of error at law, opening the case for such proceedings as might be necessary to correct the errors complained of, or vacating the decree and dismissing the bill were that the remedy indicated. In case the bill was founded upon newly discovered evidence, and was sustained, a re-examination of the case in the light of the new facts resulted; so that the name “bill of review” indicated with great exactness the nature of the pleading. It was not an independent suit, but a proceeding in the same cause, to review it. "When it was necessary to proceed to set aside an enrolled decree for fraud in procuring it, it was done by original bill, that is, by an independent suit, and this was sometimes called an original bill in the nature of a bill of review, but never a bill of review. The jurisdiction *654 in such cases applied as well to the setting aside of judgments at law, void by reason of fraud in their procurement, as to decrees in equity. As to the jurisdiction of courts of equity in such cases, Chancellor Kent, a master in chancery practice, said in Shottenkirk v. Wheeler, 3 Johns. Ch. 280: “A judgment at law may be impeached in this- court for fraud, but there is no case in which equity has ever undertaken to question a judgment for irregularity. The power of a court of law is always exercised, in such cases, in sound discretion; and the relief is frequently granted upon terms. This court cannot impose any such terms, or take any such cognizance of the case.” So the bill to impeach a judgment or decree for fraud was not designed to bring about a review of the case. It applied as well to judgments at law, over which the chancery court had no jurisdiction, as to decrees in equity over which it had improvidently or improperly exercised its jurisdiction.

With the enactment, in 1849, of our code abolishing the distinction between actions at law and suits in equity, much of the old terminology was discarded, and “bills” in equity and “declarations” at law became simple ‘ ‘ petitions. ” “ Decrees! ’ became 1 i judgments, ’ ’ and were attacked for irregularity of record, and new trials were granted for newly discovered evidence, upon simple “motions,” In fact it was expressly provided in this act (Laws 18491, p. 100, secs. 1 and 2), that: “Every direction of a court or judge, made or entered in writing, and not included in a judgment, is denominated an order;” and that “An application for an order is a motion.” This applied alike to actions which had theretofore been legal and equitable. The word “review” seems to have been erased from the vocabulary of the trial courts. Notice by publication against non-resident defendants, which had theretofore pertained exclusively to the chancery practice, except in certain special proceedings, was made a feature of all classes of actions which come within the code, whether *655 in rem or in personam. Although substantially the present provision was made for opening and reviewing judgments rendered upon constructive notice (Id., p. 103, see. 8 et seq.), it was not to be sought by “petition for review,” but .by simple “petition” (Id., sec. 9). By the Eevised Statutes of 1855, the proceedings for reviewing judgments of this character were greatly modified, and the initial step for that purpose was named “petition for review” (2 E. S. 1855, 1280', sec. 13). The statute recognized its character as a supplemental proceeding by requiring that it be verified by affidavit as required in case of an original petition, and provided that the judgment should only be opened on condition that the defendant answer or demur to the original petition within a reasonable time to be ordered by the court. It was also provided that in case this “petition for review” be not filed within three years after the final judgment is rendered it shall stand absolute.

At the same session of the Legislature, the section which is interposed as a defense in this suit was enacted, and incorporated in chapter 55, E. S. 1855, entitled, “An Act concerning divorce and alimony.” It provides, as we have seen, that no “petition for review” shall be allowed of any judgment rendered in any case arising under that chapter.

That these several provisions are in pari materia there can be no doubt. The practice in divorce cases is prescribed and regulated by both acts. For instance, the notice by publication which constitutes the foundation of the judgment of divorce in this case, is authorized and regulated by the general practice act. The “petition for review” authorized in the general act would apply to judgments for divorce had it not been modified by the act concerning divorce and alimony. No action for divorce can be prosecuted, or even begun, without reading them both together as parts of one judicial plan for obtaining a judgment, and we must *656 assume that consistency of language which is indispensable to express a consistent plan. Even the words in the last section of the divorce act “any law or statute to the contrary notwithstanding” are innocuous and inexpressive compared with the following words used in the general practice act (R. S. 1855', p. 1281, sec. 15): “If such petition for review be not filed within three years after such final judgment is rendered, the same shall stand absolute. ’ ’ That the petition in this case is not a petition for review under any reasonable definition of that term is evident. It neither corresponds to the definition of “bill of review” as formerly used in chancery practice, nor to the definition of “petition for review” as used in the practice act of which the practice relating to divorce and alimony forms a part. The doctrine of this court relating to the construction of these words, was expressed by Black, J., in Irvine v. Leyh, 102 Mo. 204, as follows :

“We here notice the contention made by the defendant Leyh, that this suit is barred by section 3686 of the Revised Statutes of 1879. That section and the preceding and succeeding sections provide for a review where th.e defendant is notified by publication only and does not appear to the action. The petition for review must be filed within three years after final judgment, and, if not filed within that time, the judgment stands absolute. To obtain such review it is not necessary to show fraud in procuring the judgment, but it will be sufficient to show that the petition, upon which the judgment was procured, is untrue in some material matter, or that the party ashing the review has and had a good defense. The plaintiffs here do not ash a review under the statute. They seeh to set aside the attachment judgment because procured by fraud. Courts of equity have an inherent power to set aside judgments obtained by fraud, and that power is not tahen away by the statute providing for a review in the cases before mentioned. This suit is not founded *657 on the statute, and hence section 3686 constitutes no bar.”

The same learned judge also wrote the opinion of the court in Salisbury v. Salisbury, 92 Mo. 683, which seems to be the principal case relied on by the defendant. How directly the question as to whether a petition to set aside a .judgment for fraud is a petition for review, was presented in the Salisbury case, is shown by the following fair statement of the issue appearing in the opinion, page 686: “The general allegation is, and the detailed facts show, that defendant’s course of conduct was a systematic contrivance to get rid of his wife, that he was not entitled to the decree, but procured the same by a shameful deception and fraud on the plaintiff. No marriage relation has been contracted by either party since that time, and it will be taken, without further discussion, that plaintiff on the petition, confessed as it now stands, is entitled to relief unless she is shut out and deprived of it by reason of our statute.” Upon the question so presented he said, page 688: “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 excep *658 tion. The courts are powerless to legislate one into it. It asserts broadly a principle of public policy which has found recognition elsewhere.”

"We have attempted to reconcile the language of . these cases, but have been unable to do so, and conclude that the views of the distinguished judge who wrote the opinions had become modified. - It will be observed that Judge Black attributes the enactment of the last section of the divorce act to the dissenting opinion of Judge Scott in Smith v. Smith, 20 Mo. 166, 169, in which, without the support of the court, he deprecated the legislative policy which would give the man who had obtained a divorce through the courts the privilege of marrying, and after it had been exercised, withdraw it and thereby make an innocent woman a concubine, and her children illegitimate. This eloquent denunciation would perhaps carry greater weight had it been, made with the deliberation necessary to the consideration of section 10, chapter 50, of. the Revised Statutes of 1845, then as now in force, providing that the issue of all marriages deemed null in law, or dissolved by divorce, shall be legitimate. This statute has frequently been before the courts for interpretation (Green v. Green, 126 Mo. 17, and cases cited), and would certainly have taken care of the issue of such a marriage, and, so far as the mother is concerned, it will be important to consider her status as the innocent victim of cruel fraud when her rights are presented for adjudication, as is suggested by Napton, J., in Mansfield v. Mansfield, 26 Mo. 163. It seems to us that the argument of Judge Scott could be used with even greater force in favor of the bigamist. We say greater force because his argument expressly assumes that the woman last injured had before her the public record of the divorce and acted upon the faith of it. This should open, to a prudent person, a field of suggestion and inquiry more or less fruitful, while in case of the *659 bigamist the rule is that the controlling incident of his past is usually shrouded in mystery.

The doctrine that the last husband or wife takes precedence of all predecessors is a dangerous one, which we should feel slow to recognize as a part of the judicial policy of the State. There may. be instances, as Judge Scott suggests, where innocent women will suffer in maintaining the integrity of the marriage relation; but in such cases the suffering will not come from the protection extended by the courts to those who honestly and sincerely fulfill the obligations incident to that relation, but from the fraud and wrong of those who treacherously violate them. If we prevent frauds of this kind there will be no victims. If we encourage and condone them the victims will always be at our doors clamoring for justice. The policy indicated in the judgment of the circuit court in this case would hold out the promise of easy success to men and women who desire to free themselves from their present matrimonial obligations for the purpose of contracting new ones, and every case would have its innocent victim. If the ties that bind us in our domestic relations are to be strained and broken, the responsibility should not rest upon the courts.

We think that the gross frauds charged in the petition and admitted by the demurrer, render the judgment of divorce which it seeks to set aside void as between the parties thereto, and that it should, upon the facts stated, be set aside in equity. We are also of the opinion that the statute invoked by defendant forbidding the allowance of a petition for-review in such cases, is not applicable to an original suit of this character, and was not intended to so apply. We have carefully read the authorities cited by the defendant and have only been strengthened by them in the opinions here expressed. If there is anything in the case of Salisbury v. Salisbury inconsistent with these views, it is to that extent disapproved. The judgment of the *660 circuit court is therefore reversed, and the cause remanded, to be proceeded with in accordance with the views here expressed.

Blair, G., concurs.

PER CURIAM. — The foregoing opinion of Brown, C., is adopted as the opinion of the Court in Banc.

Valliant, G. J., Lamm, Graves, Ferriss, Kennish and Brown, JJ., concur; Woodson, J., dissents in an opinion filed.