#### Routledge, Appellant, vs. Patterson, Executor, imp., Respondent.

*April 8*—

May 2, *1911.*

*Judgment: Vacation: Power of court: Stipulation induced Toy fraud: Divorce: Division of property.*

1. After the term at which it was rendered a judgment cannot he vacated for fraud or upon other than jurisdictional grounds, except as provided in sec. 2832, Stats. (1898), within one year after notice thereof.

2. Where the defendant husband in a divorce action fraudulently induced the wife to stipulate to accept a certain sum in a final division of the husband’s estate, and the judgment awarded a final division in accordance with such stipulation, the rendition of the judgment will be deemed to have been induced by the actual state of facts then before the court, not by the husband’s fraud. *Decher v. TMedt, 133*Wis. 148, followed.

Appeal from an order of the circuit court for Milwaukee county: W. J. TubNek, Circuit Judge.

*Affirmed.*

The complaint in this action alleges that the plaintiff and Ira Boutledge, now deceased, were husband and wife prior to November 22, 1907, and that a divorce action was then pending and about to be tried; that the defendant Ira Boutledge, with intent to practice a fraud upon the plaintiff to induce an unfair and fraudulent division of his estate in that action, *227made false statements to tbe plaintiff as to tbe amount of bis property and especially as to tbe amount of bis debts, and tbat plaintiff, believing sucb false representations, agreed to accept $500 as ber share in tbe final division and distribution of tbe defendant’s estate, in full of all alimony and costs and of ber rights and interests in bis estate. It is also alleged tbat tbe court was thereby fraudulently induced to award a final division and distribution of tbe defendant’s estate and tbat judgment was rendered in accordance therewith. No other testimony was taken as to tbe amount of tbe defendant’s property.

It is alleged tbat but for tbe fraud so practiced by tbe defendant a much larger sum would have been awarded to tbe plaintiff, and tbat tbe procurement and use of tbe stipulation was>a fraud upon tbe plaintiff and tbe court. It is further alleged tbat tbe plaintiff did not learn of tbe falsity of tbe statements made by tbe defendant until more than a year after tbe rendition of tbe judgment, and tbat she is without remedy except in a court of equity.

Tbe defendant in tbe divorce action died July 15, 1909, more than a year after tbe entry of tbe judgment in tbe divorce action, and tbe plaintiff in tbat action now brings tbis action against tbe executor of tbe decedent’s estate and prays that tbe award of $500 made to ber .in the divorce action as and for ber share and interest in his estate be declared fraudulent and set aside, tbat tbe value of tbe deceased’s property at tbe time of tbe judgment in tbe divorce action be ascertained, and tbat sucb amount as may be found to be fair and equitable may be paid to ber out of tbe estate of tbe deceased. The devisees and heirs at law of tbe deceased are also made defendants in tbis action. Tbis is an appeal from tbe order ■of tbe court sustaining tbe demurrer to tbe complaint.

Eor tbe appellant there was a brief by *William L. Tibbs*and *Bossiter Lines,*and oral argument by *Mr. Lines.*

They contended that equity will relieve against a judgment obtained by fraud in tbe absence of fault or negligence on tbe part of *228tbe one seeking relief, and it is unfettered by statute or otherwise in exercising its power. Black, Judgments, § 321; *Marine Ins. Co. v.*Hodgson; 7 Cranch, 332, 336; *Guild v.*Phillips, 44 Eed. 461; *Trefz v. Knickerbocker L. Ins. Co. 8*Eed. 177; *Wellborn v.*Tiller, 10 Ala. 305; *Zinc C. Co. v. First Nat. Bank,*103 Wis. 125; *Batch v.*Beach, 119 Wis. 77; *Boring v. Ott,*138 Wis. 260. Tbe remedy is properly sought in an independent action, upon which the only limitation is that imposed by subd. 7, sec. 4222, Stats. (1898). *Crowns v. Forest L. Co.*102 Wis. 97.

*Samuel Wright,*for the respondent.

SiebecKer, J.

The complainant seeks relief against the judgment in the divorce action in so far as the judgment therein awarded a final division and distribution of the husband’s estate. The power to vacate and set aside a judgment after the term of court at which it was rendered, except for want of jurisdiction of the court to render a final judgment in the action, is limited by sec. 2832, Stats. (1898), to a period of one year after notice thereof. As was declared in *Uecker v. Thiedt,*133 Wis. 148, 113 N. W. 447: “The old bill of review to vacate judgments for fraud or grounds other than jurisdictional ones was terminated by the adoption of our Code of Practice.” See cases there cited.

It is strenuously urged that the facts alleged in the instant case constitute a cause of action for equitable relief against that part of the judgment in the divorce action by which the court awarded a final 'division and distribution of the husband’s estate, because the facts alleged show that this plaintiff was fraudulently induced by the deceased husband to stipulate to accept the sum of $500 in lieu of all her claims for costs, alimony, and her equitable share in a final division of his estate in such divorce action. Plaintiff alleges that she was induced to consent to such stipulation by the decedent’s false representations as to the amount of his debts and his *229false representations as to tbe amount of property be actually owned, that ber consent was unmixed witb any fraud or negligence on ber part, and that sbe first learned of these false representations after bis decease and after tbe expiration of •one year from tbe time sbe bad notice of tbe rendition of tbe judgment ip. tbe divorce action. Tbe relief sought in tbe instant case is like that sought in tbe *Uecher*Oase, and tbe facts .alleged on which equitable relief is invoked in tbe two cases are in their legal effect well nigh tbe same. Here, as there, tbe court in tbe divorce action awarded a final division and distribution of tbe husband’s estate between tbe parties to tbe action in accordance with tbe written agreement of tbe parties, which it is alleged tbe husband obtained from tbe wife by false and fraudulent representations as regards tbe true amount of bis estate, and it is alleged that tbe wife was induced to consent thereto unmixed witb any fault or negligence ■on ber part. It was there held respecting such a state of facts that “this falls far short of an assertion that the testator in any wise imposed upon tbe court or by fraud induced tbe rendition of its judgment.” It is there held that tbe court’s action must be deemed to have rested on tbe agreement and tbe other facts of tbe case brought to its attention, and that under such circumstances tbe action of tbe court in rendering judgment must be deemed to have been induced by tbe actual state of facts then before it, and that it cannot be said that tbe alleged fraudulent transaction through which tbe conditions were created on which tbe court acted operated as a fraud on the, court in awarding the judgment. We are persuaded that this case is ruled by tbe *Uecher*Case, and that the trial court properly sustained tbe demurrer to tbe complaint.

*By the Court.*— Tbe order appealed from is affirmed.