Page:Harvard Law Review Volume 32.djvu/213

RECENT CASES 177 Originally, in the United States, probate jurisdiction was of a special char- acter, exclusively vested in independent courts, and removal to the federal courts was not available. Broderick's Will, 21 Wall. (U. S.) 503. A removal of a wiU contest is, however, permitted when the state courts of general civil jurisdiction, as distinguished from special appellate courts of probate, are authorized by statute to determine the validity of a will; provided also that the will has been probated by lower courts and is attacked as a muniment of title. Gaines v. Fuentes, 92 U. S. 10; Brodhead v. Shoemaker, 44 Fed. 518. See Ellis v. Davis, 109 U. S. 485, 496, 3 Sup. Ct. Rep. 327, 334. But a bill to contest a will and to enjoin a distribution under it is not removable. Parrel v. O'Brien, 199 U. S. 89, 25 Sup. Ct. Rep. 727. A distinction is drawn between an independent controversy inter partes and a proceeding ancillary to the original probate. Yet the proof of the will is the same in both cases; so that the distinction hardly seems tenable. In the principal case, the only issue on appeal may have been the one of removal and not the probate of the wiU, for the lower court had not passed on the will. If the state court did have probate jurisdiction, probate by the lower court is immaterial, for the appeal is an investigation de novo at any rate. See 1914 Park's Ann. Code Ga., § 5014. Judgments — Foreign Divorce Decree — ; Collateral Attack for Fraud. — A husband sued for divorce in Vermont. He offered to show that his wife's divorce from her first husband was obtained in New York through false testimony as to her age. Held, the foreign decree cannot be attacked collaterally. Deyette v. Deyette, 104 Atl. 232 (Vt.). If a court obtains jurisdiction through fraud of a party, its judgment is merely voidable, impeachable by direct proceedings. Ex parte Moyer, 12 Idaho, 250, 85 Pac. 897; Mahon v. Justice, 127 U. S. 700, 8 Sup. Ct. Rep. 1204. See 20 Harv. L. Rev. 239. But if the court is defrauded into thinking it has jurisdiction when there is none in fact, the judgment is assailable collaterally. Dunham v. Dunham, 162 111. 589, 44 N. E. 841; Magowan v. Magowan, 57 N. J. Eq. 322, 42 Atl. 330; Plummer v. Plummer, 37 Miss. 185. If the fraud merely goes to the evidence, there can be no collateral attack. Field v. Sanderson, a Mo. 542; Christmas v. Russell, 5 Wall. (U. S.) 290; Nicholson v. Nicholson, 113 Ind. 131, 15 N. E. 2?3. But see contra, Dumont v. Dumont, 45 Atl. 107 (N. J.). Even a direct attack will generally not be allowed in such a case; otherwise litigation would become endless. Greene v. Greene, 2 Gray (Mass.) 361; United States v. Throckmorton, 98 U. S. 61; Parish v. Parish, 9 Ohio St. 534. But if the fraud is extrinsic, as in preventing the unsuccessful party from fully presenting his case, the judgment may be attacked collaterally. Daniels v. Benedict, 50 Fed. 347. A stranger, however, may in any case of fraud impeach the judgment collaterally, because it is his only means of availing himself of the fraud. De Armond v. Adams, 25 Ind. 455; Sidensparker v. Sidensparker, 52 Me. 481; Ogle v. Baker, 137 Pa. St. 378, 20 Atl. 998. See Greene v. Greene, 2 Gray (Mass.) 361, 366. But the stranger must be prejudiced with regard to some pre-existing right. Ruger v. Heckel, 85 N. Y. 483. See also Freeman, Judgments, § 335. In the principal case the second husband had no such right. Some courts will never disturb a divorce decree even in case of the grossest fraud, because of the extensive collateral effect on third parties. Parish v. Parish, supra; DeGraw v. DeGraw, 7 Mo. App. 121. Gener- ally, however, divorce decrees are treated like any other. Daniels v. Benedict, supra; Johnson v. Coleman, 23 Wis. 452. For a discussion of the distinction between collateral and direct attack, see 23 Harv. L. Rev. 67. Master and Servant — Workmen's Compensation Acts — Recovery FOR Non-Occupational Diseases. -^ A common laborer was directed in the course of his employment to do some painting on a bmlding. The cold weather