CHANDLER v. CHANDLER

Plaintiff's action was brought in two counts. Count I sought to recover for fraud and deceit which caused the plaintiff to pay money to the defendant for their minor child under a divorce decree providing for support for the child until the child married or became 21 years of age. The petition alleged that the plaintiff paid the support money under the judgment until and through September 15, 1943; that a few days before this date he discovered the child had married on September 10, 1943; that in the month of December, 1961, plaintiff discovered for the first time that the minor child had been previously married on April 11, 1940, to a party named Davis in Russell County, Alabama, and received support from Davis; and that this marriage was dissolved by divorce on or about September 3, 1943; that the defendant knew of the marriage; knew the daughter's husband was supporting her; that defendant was not supporting the daughter; but the defendant, knowing these facts and being acquainted with and knowing the contents of the court order providing for support, continued to accept from the plaintiff the sum of $25 per month during the period beginning with the first marriage of the daughter and continuing through September 15, 1943; that at no time during this period was defendant entitled to receive such payments and knew she was not entitled to them; but did not notify the plaintiff of the marriage and received the payments and used them for her own benefit; and that this conduct constituted a fraud upon the plaintiff.

Count 2 of the petition incorporated all of the allegations of count 1 and sought the recovery of punitive damages to punish the defendant and to prevent her from "repeating her trespasses." The petition concluded with prayers, inter alia, that "equity take jurisdiction of the matter as to counts one and two"; that the petitioner be allowed to set off the amount out of which he had been defrauded against further payments of alimony due the defendant at the rate of $50 per month, or that he have judgment in the amount with interest; and that he have such other relief as might be equitable and just.

The defendant filed general and special demurrers. The plaintiff then amended the petition, adding allegations that the payments were made by the plaintiff to the defendant after she had stated both in sworn testimony in court, and to him in conversation out of court, that the child was unmarried and that plaintiff was liable for her support; and that in making these payments plaintiff relied upon the truth of these statements of the defendant; plaintiff only discovered the first marriage when the defendant boasted that she had defrauded him and collected money to which she was not legally entitled; that during the time of the divorce proceeding between the plaintiff and defendant, for many months prior thereto and for all of the period during which the support money was illegally collected, the minor daughter was under the influence and control of the defendant and would have nothing to do with the plaintiff because of this influence; and that the daughter participated in the fraudulent acts of the mother and actively and wilfully concealed from the plaintiff the fact that she had married; that during the trial of the divorce action, defendant falsely testified that the child was unmarried and informed the jury that she should receive support for the supposedly unmarried child, which testimony was wilfully given by the defendant who knew it was false.

The petition charged that by virtue of the facts alleged the defendant has enriched herself to the extent of $1,025 to which sum she was not entitled either in law, equity or good conscience.

After hearing, the court entered an order sustaining the general demurrers to the plaintiff's petition and dismissed the action, to which order exception was taken.

BELL, Judge.

The amended petition shows on its face that the fraud alleged to have been committed by the defendant was intrinsic, not extrinsic or collateral, to the issue in the trial for alimony and child support and to the judgment rendered thereunder. The judgment rendered in favor of the defendant ordered the plaintiff to pay $25 per month to support the child until she marries. This constituted an adjudication that the child was not married on the day of the judgment. Admittedly, under the facts of the present petition, this judgment was obtained by fraud since the defendant knew that the child had been married for more than 13 months prior to the time of the trial of the action for alimony and child support, but she falsely testified that the child was then unmarried.

"A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue, or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered, until such judgment shall be reversed or set aside." Code § 110-501. By a seemingly harsh, unreasonable and antiquated statute, it is the law in our State that where a judgment is obtained by perjury, it cannot be set aside unless the person charged with such perjury shall first have been tried and convicted of this crime. Code § 110-706. See also Stephens v. Pickering, 192 Ga. 199 (2) ( 15 S.E.2d 202); and Munro v. Moody Fry, 78 Ga. 127 (2) ( 2 S.E. 688). Because of this archaic statute, dating from 1833, and the decisions which it has compelled our courts to make, the plaintiff here cannot maintain his action for fraud unless the perjurer has been duly convicted of the crime, and the prior judgment set aside. Neither of these conditions precedent has occurred in this case.

Furthermore, a proceeding on a judgment procured by perjury cannot be arrested by an affidavit of illegality without proof of the conviction of the perjurer, and that the judgment could not have been obtained without his evidence. Lewis v. Wall, 70 Ga. 646, 649. Cf. Restatement — Restitution, § 72, p. 293 and Illustration (1) to Comment c. (1937).

For the foregoing reasons, as both counts 1 and 2 of the petition seek to recover damages for the action of the defendant in defrauding the plaintiff without having first met the requirements of the above statute, the petition does not state a cause of action which the courts may consider. Accordingly the trial court properly sustained the general demurrer to the petition.

Judgment affirmed. Felton, C. J., and Hall, J., concur.