Page:North Dakota Reports (vol. 3).pdf/392

 When we apply these principles to the case before us, there is not the least doubt that the action of the court in setting aside the decree was entirely correct; and in so declaring we do not intend to hold that the fact that the trial court found the appellant to be a resident of this state upon insufficient or false testimony would constitute legal fraud. Nor do we hold that the fact, if such it be, that the original decree was based entirely upon false or prejured evidence could be urged as a ground for an- nulling that decree. If the truth or falsity of the testimony upon which a judgment is based could be opened to subsequent inquiry, there would be no end of litigation. That matter must be regulated by the conscience of the witness, and the bar of the criminal court. 2 Bish. Mar. & Div. § 1571, and cases cited. But the fraud in this case is of a more palpable character. The plain- tiff brought his action in Stutsman County. Process was properly served. Defendant appeared by her attorney, and filed an answer in the case. If the allegations in that answer were true, they formed an insuperable barrier to any decree in plaintiff's favor. With the case thus at issue, plaintiff's attorney stated, in writing, to the attorney for defendant, that he should have notice of any further proceedings in the case. While defendant was thus lulled into security, plaintiff permitted his attorney, in direct defiance of the above understanding, and without any notice whatever to defendant or her attorney, to procure an order substituting another attorney in his stead, and permitted such substituted attorney to procure an order dismissing said action, and on the same day commenced an action in another jurisdiction.—i. e. in another Judicial District,—using, it would seem, special precautions to prevent defendant from obtaining any actual notice of its pendency. This conduct, under the circumstances, was a gross fraud upon defendant's rights. In all the subsequent proceedings that led up to the decree, the court was in no’ manner informed of any of the prior proceedings in the case in Stutsman County. It cannot be doubted that, had the court received any knowledge of such facts, no further step would have been permitted in