The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1885-09-08
THE NICHOLSON DIVORCE CASE.
A Decision Rendered Reopening 1t, Although
the Defendant Has Again Married.

In general term of the Superior Court, yester-
day, Judge Taylor delivered an opinion in regard
to the case of Margaret A. Nicholson against
David A. Nicholson. On the 14th of January,
1879, Nicholson began suit for divorce from
Margaret, and on the 4th of the month following
the petition and evidence were heard without
the presence of Margaret, who, having been
served with summons, defaulted. The following
day judgment in favor of the petitioner was
rendered, without alimony for the wife.
The action upon which the judge
delivered the opinion was to set
aside that judgment or to have it opened, so
that she may be permitted to appear to the action
and make defense thereto; Or, if not this, to
have the judgment opened so far as aimony is
concerned Failing in this she asks that she be
allowed personal judgment against Nicholson for
damages sustained by his wrongful acts in fraud
ulently prosecuting an action for divorce Her
complaint is in two paragraphs, to each of which
demurrer for want of facts sufficient to consti-
tute a of action was sustained at the
special term of the Superior Court. To this
ruling no exception was taken, and she elected
to stand by her complaint, when the judgment
of the court was, that she take nothing and pay
the costs of the suit.
The Nicholsons married on the first day
of January, 1870, and he accumulated large
amount of real and personal property with her
assistance. Nochild was born and, she charged,
| that he had no ground for divorce but that com
mencng the suit with the fraudulent intent of
depriving her of her rights as his wife. and to
| escape discharging his obligations to her. he
charged that she had become habit
ual drunkard. Prior to the day she was
served with the summons Nicholson represented
| to her that it would not be necessary for her to
take any steps toward a defense, and promised
and agreed that he would not prosecute the
action, but would dismiss it. He had no inten-
| ton Of performing this agreement, she says and
only made it to prevent her from making a
defense. Relying on his word, she took no steps
to make a defense, nor to claim
alimony. In despite of this, he
defaulting, the case was submitted on ex parte
evidence She had no knowledge of this until
after the close Of the term of court and until he
re married.
Prior to commencement of the suit Nicholson,
she charges, had become enamored with one "a.
B." ard desired the divorce in order that he
might marry her, which desire "a. B. partici-
pated In, but 1T was not known to the
plaintiff. The first knowledge she had of
the suit was the summons when she remon-
| strated with him on the great wrong he was at
tempting on her, and implored him not to pro-
coed. He professed to be sorry that he had
| commenced the action. She had no knowledge
of the cause and did not hear of the divorce
In the newspapers. She became very sick which
prevented her from taking action at once She
was reduced to poverty by this divorce without
alimony. Hepromsed to make provision for her
better than the courts would do. On account of
this promise she refrained from taking any &C
ton to set aside the divorce until July 1879
He repeatedly renewed his promise to provide
for her, but in July, 1879. he married "a. b."
and Immediately informed her that she was
without remedy, and that he would do nothing
for her.
On the 18th of December, 1879. she began suit
to review the judgment, and Nicholson and his
second wife filed demurrer to the complaint,
which, on the 10Th of April 1880, was
sustained. On the 9th of September, 1881, she
began the suit to set aside and vacate the judg-
ment, upon the ground of fraud. To this Mich
olson also demurred. On March 49, 1888 it was
sustained in the Circuit Court on account of
nonjurisdiction to give the plaintiff any relief
as against judgment rendered in the Superior
Court. The present action was instituted on the
18th of May, 1883.
After reviewing the case and applying thereto
the statutes and decisions of the Supreme
Court the opinion states that the plaintiff is not
entitled, on the facts in either paragraph of her
complaint. to have the judgment in the divorce
case opened or vacated, but the judge held that
In view OF the facts, the law gives her adequate
compensation for the injury done herin damages
as for fraud Upon the facts alleged in the
complaint, judgment in the divorce case is no
bar to the recovery of damages for
the fraud. The plaintiff is not
estopped from prosecuting this action
for such damages as she may have sustained by
the unwarrantable advantage gained by the de-
PENDANT. Each paragraph recites facts which
special term is reversed, and the cause remanded
with instructions to override the demurrer to
each paragraph. Judge Walker concurred in
the opinion.