H. C. CONE, APPELLANT,
v.
RUBY A. CONE, APPELLEE
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H.C. Cone appealed from an order vacating a divorce decree based on a petition alleging fraud in its procurement. The Florida Supreme Court reversed, holding that while a bill to impeach a decree for fraud states a valid cause of action, the petition itself does not prove the alleged fraud, and the decree vacating the divorce was therefore entered in error.
While a bill to impeach a former decree based on alleged fraud in its procurement states a sufficient cause of action, the petition itself does not prove the fraud alleged. Therefore, the trial court erred in vacating the divorce decree based solely on the petition; the court must allow the defendant to file further pleadings and conduct proceedings to determine whether the alleged fraud actually existed.
“The allegations of the petition were sufficient when considered as a "Bill to impeach a former decree" because of fraud in its procurement and the orders on demurrer and motion to strike were without error.”
Establishes that a bill to impeach a decree for fraud is a valid cause of action with sufficient pleading requirements.
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Join FLexlaw to unlock all legal intelligenceA petition was filed to vacate a final decree of divorce on grounds of fraud in its procurement. The petition was treated as an original bill in the n…
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— In this case there was a petition filed to vacate a decree of divorce. It appears that the petition was treated as an original bill, in the nature of a bill of review to impeach and vacate a final decree. There was a motion to strike the petition and also demurrer to the petition. The demurrer was overruled and motion to strike was denied with exceptions taken to both orders. There*794upon the Court made an order vacating the decree pro confesso and final decree of divorce theretofore entered. The allegations of the petition were sufficient when considered as a “Bill to impeach a former decree” because of fraud in its procurement and the orders on demurrer and motion to strike were without error.
There was nothing on the face of the record in the divorce proceedings which warranted the decree therein to be held void. If such decree was void it was so because of the fraud alleged in the petition to have been practiced upon the court and the petitioner and whether or not such fraud existed was a matter which could only be determined upon the consideration of pleadings and evidence properly adduced to show the same. The decree of the chancellor was entered upon the petition and upon the order overruling the demurrer and the order denying motion to strike. The petition itself does not prove the fraud alleged. See Bryant vs. Bryant, 101 Fla. 179, 133 So. 635. Therefore, the final decree cancelling the former decree of divorce was erroneous and the same is hereby reversed and the cause remanded with -directions that the defendant be allowed to plead further within a reasonable time to be fixed by the court and for such further proceedings as may be in accordance with law and rules of practice.
Reversed.
Buford, C.J., and Whitfield, Brown and Davis, J.J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Bemis v. Loftin, 127 Fla. 515 (Fla. 1937)…ry, when the decrees are valid on their face, must be brought before the particular court and in the particular jurisdiction where the challenged decree was entered in the first place. Bryant v. Bryant, 101 Fla. 179, 133 Sou. Rep. 635; Cone v. Cone, 102 Fla. 793, 136 Sou. Rep. 466; State, ex rel. Willys, v. Chillingworth, Judge, 124 Fla. 274, 168 Sou. Rep. 249. Compare Miami Bank & Trust Co. v. Mahlstedt, 107 Fla. 282, 144 Sou. Rep. 659; Kroier v. Kroier, 95 Fla. 865, 115 Sou. 753; Chisholm v. Chisholm, 98…
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State v. Chillingworth, 124 Fla. 274 (Fla. 1936)…d the conclusion that the orderly administration of justice would be served by giving the Circuit Court of Dade County the opportunity to correct its decree if it was' fraudulently obtained. Bryant v. Bryant, 101 Fla. 179, 133 So. 635; Cone v. Cone, 102 Fla. 793, 136 So. 466; Miller v. Griffin, 99 Fla. 976, 128 So. 416. It follows that the writ of prohibition must be and is hereby granted. Ellis, P. J., and Buford, J., concur. Whitfield, C. J., and Brown and Davis, J. J., concur in the opinion and judgme…
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Grantham v. Grantham, 140 Fla. 120 (Fla. 1939)…ity and the bill in the nature of a bill of review as filed by appellee in the lower court was improper. The following authorities are cited: Bryant v. Bryant, 101 Fla. 179, 133 So. 635; Chisholm v. Chisholm, 98 Fla. 1196, 125 So. 694; Cone v. Cone, 102 Fla. 793, 136 So. 466. But see also in this connection Gamble v. Gamble Holding Corp., 120 Fla. 340, 162 So. 886. The record shows that counsel for the respective parties signed, and filed in the record in the lower court a stipulation to the effect that th…
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- Bryant v. Bryant, 101 Fla. 179 (Fla. 1931)