Johnson v. Johnson, 169 Ark. 1151 (1925)

Dec. 7, 1925 · Arkansas Supreme Court
169 Ark. 1151

Johnson v. Johnson.

Opinion delivered December 7, 1925.

*1153John D. Hoskins,-for appellant.

A. T. Davies, for appellee.

Mart, J.,

(after stating the facts)'. It'is the settled rule in this State that the fraud which would justify the setting aside of a judgment or decree of a court on the facts in issue must be such as prevented the unsuccessful party from fully presenting' his case, or which operated as an imposition on the jurisdiction of the court. Mere false testimony is not enough, if the disputed matter has been actually presented to and considered by the court. The mischief'in retrying’ every clase in which a decree rendered on false testimony given by perjured witnesses would be greater, by reason of the endless nature of the strife, than any compensation arising from doing justice in individual cases.

The same rule .applies to newly discovered evidence. Evidence to be newly discovered must be found out since the rendition of the decree, and it must not have been known at the time of the trial, or could .not have been known by the exercise of reasonable diligence. It is apparent that otherwise motions to set aside decrees might be made use of as a method for vexatious persons to be oppressive, and for causes never to be at an end. Bank of Pine Bluff v. Levi, 90 Ark. 166; Smith v. Rucker, 95 Ark. 517; Long v. Long, 104 Ark. 562; and McMurray v. McMurray, 153 Ark. 365.

Mrs. Susie Johnson was well acquainted with the witnesses' whose testimony is alleged to be false, and with their general reputation for truth and morality at the time their testimony was taken in the original divorce *1154suit, and no sufficient reason is given for her not attacking their credibility in that suit in the same manner in which it has been attacked in the application to set aside the divorce decree. The only excuse given tby 'Mrs. Johnson is that she could not hear very well and did not understand the proceedings. This is not sufficient. She appe'ars to be a woman of ordinary intelligence, and there is no reason why she could not have secured the testimony tending to show that the witnesses in the divorce case against her swore falsely, or that they had a bad reputation for truth and honesty as well when they testified as after the trial. She was well 'acquainted with both witnesses, and certainly knew their reputation at the time of the trial as well as she did afterwards.

In this connection it may he stated that the same chancellor who granted the divorce refused to set it aside after allowing Mrs. Johnson to introduce testimony on the question.

It follows that the decree will be affirmed.