LOUISE A. SCHUSTER, Appellant,
THOMAS SCHUSTER; J. J. COX, and A. Y. MOORE, Individually, and as Partners Doing Business Under the Firm Name and Style of COX & MOORE; MRS. JANE DOE COX, Wife of Said J. J. COX; MRS. JANE DOE MOORE, Wife of Said A. Y. MOORE; EARL ANDERSON and JOSEPH W. CONWAY, Individually and as Partners Doing Business Under the Firm Name and Style of ANDERSON & CONWAY; MRS. JANE DOE ANDERSON, Wife of Said EARL ANDERSON, and MRS. JANE DOE CONWAY, Wife of Said JOSEPH W. CONWAY, Appellees
APPEAL from a judgment of the Superior Court of the County of Maricopa. Howard C. Speakman, Judge. Judgment affirmed.
Mr. Jacob Morgan, for Appellant.
Mr. Terrence A. Carson, for Appellees.
[51 Ariz. 2] LOCKWOOD, J.
This is an appeal from a judgment dismissing the action in a case wherein Louise A. Schuster was plaintiff and Thomas Schuster and a number of other individuals, whose names need not be set forth in the body of this opinion, were defendants. The record, in substance, shows the following facts:
Plaintiff and defendant, Thomas Schuster, were married on May 30, 1918. Thereafter, and on the 8th of February, 1932, the superior court of Maricopa county entered its judgment in its case No. 34836, wherein Thomas Schuster was plaintiff and Louise A. [51 Ariz. 3] Schuster was defendant, dissolving the bonds of matrimony between the parties on the following ground: "That plaintiff and defendant lived together as husband and wife from the date of their said marriage, until the 24th day of September, 1921, when they separated, and ever since have lived, and still continue to live, separate and apart from each other; that plaintiff and defendant have not lived or cohabited together as husband and wife, or at all, for a period of more than six years next preceding the filing of this complaint."
The decree also awarded the custody of the minor child of the parties to defendant, provided for certain alimony, and divided the community property. Thereafter, defendant Louise Schuster appealed to this court from the judgment of the superior court. Many assignments of error were made by her, but she did not raise the objection that the statute which provides, as a ground of divorce, the failure of the spouses to cohabit as husband and wife for a period of five years was unconstitutional. Subdivision 9, § 2179, chap. 12, p. 20, Regular Session, Tenth Legislature (1931). This court affirmed the judgment of the lower court on July 1, 1933, in all respects. Schuster v. Schuster, 42 Ariz. 190, 23 P.2d 559. Thereafter, and on February 18, 1936, this action was brought.
The complaint in the present case occupies some sixty pages of the abstract of record, and while it sets up many different matters, we think there is but one question raised on the appeal which it is necessary for us to determine, and that is whether or not plaintiff is in a position to attack the decree in Schuster v. Schuster, supra, in the present proceeding. The present action seeks as relief: (a) That the judgment in the previous case of Schuster v. Schuster, supra, be vacated, set aside, and held for maught; (b) that certain transfers of real estate made by Thomas Schuster be set aside, and that the various other defendants [51 Ariz. 4] be decreed to have no right in such real estate. It is evident that this is an attack upon the judgment in Schuster v. Schuster, supra, and that so long as such judgment remains in force and effect plaintiff may not prevail in her present case. The question before us then is whether or not her complaint sets up facts which authorizes her in this proceeding to attack the judgment in question, for if it does not, the trial court was right in dismissing the action. Under section 3859, Revised Code 1928, trial courts may at any time within six
months after the making or entering of a judgment modify or set aside such judgment for good cause shown. We have held in many cases that after the expiration of the six months this may not be done, except for fraud, and then only by a direct, and not a collateral, attack on the judgment. Is the present attack of the first or of the second class? We had a similar question before us in the case of Henderson v. Towle, 23 Ariz. 377, 203 P. 1085, 1087, and have said:
"As the action is not brought for the sole purpose of impeaching or overturning the former judgment, but has also for its object an independent relief or result, the attack made herein upon the former judgment is a collateral one. Tube City Min. etc. Co. v. Otterson, 16 Ariz. 305, 146 P. 203, L.R.A. 1916E 303; 23 Cyc. 1062."
And in discussing the question of the difference between a collateral and a direct attack, we said in Bell v. Bell, 44 Ariz. 520, 39 P.2d 629, 631:
"It will be observed that the attack was made in the same proceeding in which the judgment was rendered, that it was made by a motion to vacate the particular judgment attacked, and that its direct and only purpose was to set aside the judgment itself and not to secure, directly at least, other ...