the case until the promise made by the former counsel was fully redeemed. Nor can it be doubted that plaintiff well knew that to be a fact. The suppression of those facts was a willful fraud upon the court. Borden v. Fitch, 8 Am. Dec. 230; Vicher v. Vitcher, 12 Barb. 640. By means of the frauds thus practiced the respondent, presumably an innocent woman, was branded as an adulteress by the solemn records of a court. That record cannot stand. It is proper as a matter of practice, to say that this application is not made under § 4939, Comp. Laws, giving relief in certain cases of mistake, inadvertence, etc. That section is not applicable to this case. Nor is it made under § 4900. That section gives a defendant served by publication only, and having no actual knowledge of the pendency of the action, the absolute right, on good cause shown, to come in, within the specified time, and defend the action, but divorce cases are expressly excepted from its operation. This application is entertained under that underlying and indestructible right to attack a judgment that is rendered without jurisdiction, or obtained through fraud upon the injured party and the court. But while the action of the court, in setting aside the decree, was proper, we think the court went a step too far, in dismissing the complaint and entering judgment for costs. After all the record that was based upon the fraud was stricken out, there yet remained a complaint to which defendant had entered a voluntary appearance. Justice to all parties requires that the searching light of truth be turned upon this case. The District Court of Cass County is directed to so modify the order appealed from as to set aside the decree of divorce, and allow the defendant 30 days from the entry of such modified order in which to plead to the complaint, if she so elect; respondent to recover costs in this court.
Modified and affirmed. All concur.
Corliss, J. I refrain from expressing any opinion whether the appearance validates the decree, so far as jurisdiction was concerned, or whether it conferred jurisdiction only from the date of the appearance.
(55 N. W. Rep. 1095.)
N. D. R.—23.
