Imágenes de páginas

of the divorce judgment. Yes, plaintiff has remarried, according to the record, and he did this before the ink was dry upon the judgment divorcing him by default from the woman who had been his wife for twenty-five years, who had borne his children and reared them to near their majority, and who had kept the home and hearth for him and his children during all these years. And this judgment, obtained without a hearing on the part of defendant, was upon a complaint not charging cruelty or adultery, or any of the graver offenses against the marriage contract, but upon a complaint alleging desertion only, and a desertion after twenty-five years of married life-a charge by plaintiff, upon the truth of which all the circumstances of this case throw the gravest suspicion. In this connection it is appropriate to notice the verified answer which was tendered with the motion. That answer not only denies the allegation of desertion, but it emphatically denies that plaintiff is a resident of the state of Montana, and it sets up facts which, if true, show that he is a resident of the city of La Crosse, Wisconsin. It alleges that the plaintiff was a railroad conductor, and that he was employed in different places, and that, after having had many homes at divers times, they finally settled in this home in La Crosse; that plaintiff always treated it as such, and that he spoke of it as such in the letters which he wrote to defendant and his children; that he wrote to them in affectionate terms, and visited them up to a short time before commencing this suit, and up to that time sent them money and presents; and that never did he intimate his claim of defendant's alleged desertion, or of his intention to claim a residence in Montana. Now, under all these circumstances, for plaintiff to claim that bis remarriage, in this hot and indecent haste, is pertinent upon this motion is a sorry sort of reply to the motion of defendant setting up the pitiable facts disclosed by this record. Nor is the situation of the person whom plaintiff purported to marry on August 15th a consideration that can set aside the rights of this defendant. Such condition is not of defendant's creation or her fault.

396 The order denying the motion to open the default is reversed, and the case is remanded, with directions to the district court to grant the application, and to set aside the judgment, and allow defendant to file her answer and make defense.

All concur.

JUDGMENT OF DIVORCE-ANNULMENT AFTER SUBSEQUENT MARRIAGE.—A decree of divorce obtained by fraud may be vacated at a subsequent term, although a marriage was contracted on its faith, and issue born: Allen v. Maclellan, 12 Pa. St. 328; 51 Am. Dec. 608. The fact that a marriage has taken place in another state on the faith of a previous divorce there does not prevent inquiry by the courts of another state as to its validity and a denial of such validity if the divorce is one that would be decreed void if it were directly in issue: Adams v. Adams, 154 Mass. 290. See, also, tho note to Brown v. Grove, 9 Am. St. Rep. 826.

JUDGI.NTS. – VACATING FOR EXCUSABLE NEGLECT: See the notes to Tay. lor v. Pope, 19 Am. St. Rep. 533; Williams v. Wescolt, 14 Am. St. Kep. 296, and the extended note to Burnham v. Hays, 58 Am. Dec. 397: Seo, also, Leaming v. McMillan, 59 Ark. 162; ante, p. 26, and note.


[14 MONTANA, 467.) EVIDENCE, CONTRACT TO PROCURE. -A contract is void as against public

policy if by it one of the parties agrees to secure such testimony as will enable the other to win an existing or contemplated suit. It is not nec. sary that the contract should contemplate the production of perjured testimony. It is void because its tendency is to promote unlawful acts. ACTION to recover for personal services of the plaintiff in the suit of Muller v. Buyck. This was an action brought by defendant therein to recover possession of certain lands which she had conveyed to Buyck, and to have the conveyance thereof canceled, and the plaintiff herein agreed, respecting that action " to make search and inquiry and ascertain the names of persons who were familiar with the property, and acquainted with the defendant Buyck and with the facts and circumstances connected with the execution of the instrument aforesaid, and the financial circumstances of the defendant Buyck, and to procure such other testimony which when introduced in the court in an action duly and regularly brought would entitle the said defendant to the possession of said property and the cancellation of the said instrument, and restore to her all her rights in such property.” Judgment for the plaintiff; defendant appealed.

J. M. Clements, for the appellant.
Walsh & Newman, for the respondent.

470 DE WITT, J. We are of opinion that the complaint is not sufficient to sustain the judgment. The learned dis

trict judge would have doubtless so held if the point had been made before him. We believe that the contract set out in the complaint is void as against public policy, and as tending to impede the 471 administration of justice. The plaintiff was employed, not only to make search and inquiry for witnesses, and to ascertain the names of persons acquainted with the facts and circumstances, but also, in addition to this, to procure such other testimony which, when introduced in evidence, would entitle the said Anna Muller to recover possession of the property. The searching for witnesses who had disappeared or documents which had been lost, or the performance of legitimate detective work, is not subject to objection. But the plaintiff was, according to his contract, to do more than this. These things he was to do, but they were not considered sufficient. He added to them, and contracted, in connection with them, that he would, in effect, procure testimony that would win a lawsuit. It is alleged further, in effect, that the testimony which he thus procured did win the lawsuit. Indeed, the contract, brought down to a simple statement, is that plaintiff agreed, for a consideration, to procure testimony that would win the lawsuit. He procured the testimony, and it won the suit.

We do not hold the contract void because it was an agreement to procure perjury, or because it did procure perjury, but the contract had the tendency and opened the very strong temptation to the procurement of perjury.

Mr. Bishops says: “The mere tendency of a contract to promote unlawful acts renders it illegal, as against the policy of the law, without regard to any circumstances indicating the probable commission of such acts”: Bishop on Contracts, sec. 476.

In the case of Wellington v. Kelly, 84 N. Y. 543, the court found that the particular contract there under review was a legitimate and proper one, but, upon the general principle of contracts to furnish evidence for a lawsuit, Judge Andrews, in the opinion, says: "In Stanley v. Jones, 7 Bing. 369, it was held that an agreement made by a third person to communicate to a person claiming to have been defrauded such information as would enable him to recover damages for the fraud, and to exert his influence to procure evidence to substantiate the claim, upon condition of receiving portion of the sum recovered, was illegal. In that case the person making the agreement to communicate the information was an entire 479

stranger in interest to the proposed litigation, and professed to have knowledge of facts of importance to the party, but which he did not disclose. Lord Denman said that such an agreement was illegal, from its manifest tendency to pervert justice, and we fully assent to the decision in that case. An agreement by a stranger to furnish evidence to substantiate a claim or defense, for a compensation depending upon the success of his efforts, is dangerous in its tendency, as furnishing an inducement for perjury and the subornation of witnesses.” In the English case cited in the New York report, the person contracting to furnish the evidence agreed that “he should and would use and exert his utinost influence and means for procuring such evidence as should be requisite to substantiate the claims of the said defendant: Stanley v. Jones, 7 Bing. 379. There is a very considerable similarity between the contract which was condemned by the English court and that which is now before us.

The supreme court of Illinois took occasion, in the case of Gillett v. Board of Supervisors, 67 Ill. 256, to treat this subject in very vigorous and pertinent language. A case was about to be tried involving the legality of an election to determine whether the county should subscribe for certain railroad bonds. The legality of the election which had been held being questioned, and the county supervisors, apparently desiring to overthrow the result of the election, made certain contract as to the procuring of testimony to attack the result of that election. In the contract which the supervisors made with one McNeal, they provided as follows: “That if he [McNeal] will hunt up testiniony, and prepare the same, and present it to the proper authorities who may be authorized to receive it, and, after said testimony or evidence is fully received, and shall be acknowledged as legal, then, for said services, said McNeal is to receive from Logan county the following amounts: For ten illegal votes, Bo proved, $100; for ten other illegal votes, 80 proved, $200; for ten other illegal votes, so proved, $300; for ten other illegal votes, so proved, $400; for ten other illegal votes, so proved, $400; for ten other illegal votes, so proved, $400; for ten other illegal votes, so proved, $400. The above-mentioned illegal votes must be in place of, answer to, or represent certain unknown names on the east and west Lincoln poll-books of the election above mentioned. The condition of this obligation is such that the said McNeal'is to pay all his own individual expenses, and the ex


penses of any parties whom he may employ in preparing such testimony, and finding such testimony, and finding such witnesses; and that above amount, or any part of the same, shall not be due or payable until the illegality of such votes is legally proven. It is further agreed that, in case the county of Logan is finally released from any liability to pay said bonds now in dispute between said county and the P. L. and D. R. R. Company, by means of proving the majority in said election to be illegal, the county of Logan further agrees to pay said M. B. McNeal the sum of twelve hundred dollars, which said amount is to be in addition to the scale of prices above mentioned, and payable only after the courts have decided the case in favor of the said county."

The supreme court of Illinois in passing upon this contract, said: “The evidence disproved the actual use by the committee of any corrupt means or any corrupt design, on their part, in the use of the money. But the contracts them. selves are pernicious in their nature. They created a powerful pecuniary inducement on the part of the agents so em ployed that the testimony should be given of certain facts, and that a particular result of the suit should be had. A strong temptation was held out to them to make use of improper means to procure the needful testimony, and to secure the desired result of the suit. The nature of the agreement was such as to encourage attempts to suborn witnesses, to tamper with jurors, and to make use of other 'base appliances' in order to secure the necessary results which were to bring to these agents their stipulated compensation. The tendency of such arrangement must be to taint with corruption the atmosphere of courts, and to pervert the course of justice. A pure administration of justice is of vital public concern. It tends to evil consequences that any such venal agency as is constituted by these contracts should have a part in the conduct of judicial proceedings where the attainment of right and justice is the end. Should such contracts of this character receive countenance we might, among the multiplying forms of agency of the time, bave to 474 witness the scandalous spectacle of a class of agents holding themselves out to the public as professional procurers of desired testimony for litigants in court for pay, contingent upon success in their suits. In Marshall v. Rails oad Co., 16 How. 314, it was held that a contract or a contingent compensation for obtaining legislation was void by the policy

« AnteriorContinuar »