further, and says to the court: “Notwithstanding the fact that I was never served with process, yet I now aver that plaintiff states no cause of action against me in his complaint, and I ask to have the judgment set aside for that reason also,” by what legal necessity or propriety can it be said that he thereby shuts his own mouth, forecloses the question, and forever makes the complaint good, as against himself. We doubt if such a result should follow a voluntary appearance under such circumstances. But, however the law may be as touching mere irregularities, we are confident that no subsequent voluntary appearance can cure or condone fraud, such as appears upon the record before us. A court record, based upon a legal fraud, may demand obedience while it stands, but it is idle to talk of the sancitity of such a record. Whatsoever is tainted with fraud—a court record no less thana contract—must fall before the clear evidence of the fraud by which it was established. This principle can never be departed from without making the law the instrument for the perpetration of injustice, oppression, and crime. This is familiar law. But see Black, Judg. § 321, and cases cited.
It is contended, however that decrees in actions for divorce form a clear exception to the general rule; that in this class of cases, reasons of public polity, the interests of the state, as well the irreparable wrong that may be done to innocent third parties in cases of remarriage, alike demand that divorce decrees should not be subject to attack in this manner. It is freely conceded that courts have sometimes so held. Perhaps the strongest case in the books is Parish v. Parish, 9 Ohio St. 534. That case did not arise on motion to vacate, but under the old practice of bill in equity filed at a subsequent term. There was a demurrer to the bill, and the court said: “For the honor of human nature, it is to be hoped that the facts alleged in the petition in regard to the procuration of the decree are not true in fact, though, for the purpose of the demurrer, they are to be taken as admitted. Indeed if a case could be supposed in which a decree a vinculo, by a court having jurisdiction over person and subject matter,
