Robert Rawlins, Administrator, et al., Appellants, vs. Amanda Rawlins, et al., Appellees, 18 Fla. 345

Mr. Justice Westcott delivered the- opinion of the court. The grounds of the demurrer urged upon the hearing of this appeal were several in number. We examine them without reference to the order of their statement. • First. That the said infant plaintiffs, if necessary parties to this suit, are not made parties by the bill. Plaintiff, Amanda Rawlins, sues in her own right and as next friend of Gartha Rawlins and the others. We had occasion to examine this question in the case of Sanderson’s Administrators vs. Sanderson, 17 Fla., 820. The bill should be filed in the name of the infants through their next friend.

This, therefore, was good ground of demurrer. It is also true that her claim as heir is improper; she must claim as widow. 17 Fla., 820. Second. That treating the infants as plaintiffs there is misjoinder and multifariousness. This is a bill by the surviving wife and three of the heirs and distributees against the administrator and the other heirs of the deceased husband seeking to recover their share of the real.and personal property belonging to his estate. This is its general character.

The plaintiff, the widow, seeks further to set aside the administration granted to one of the sons of the deceased, and to be appointed administratrix with power to take charge of the estate. The ground upon which the plaintiffs base their right is, that a decree of divorce from his wife, obtained by the husband during his life, was a fraud upon the court and upon the plaintiffs, arid.was void. Postponing the consideration of the matter of the prayer to be appointed administratrix, we cousider whether misjoinder or multifariousness exists by virtue of the joinder of the wife and her children as co-plaintiff's.

The demurrer admits the facts set up in the bill. It presents upon its face facts which if true constitute not an ordinary’but an extraordinary fraud, a fraud seldom equalled and never excelled by any of the cases in the books.

A husband who would induce his wife to commit a crime, and then claim that her separation from him by judicial sentence as punishment resulting from such crime, she being prosecuted by him, is an abandonment or desertion, who, after her release, and while she was living with him at his own request as his wife, prosecuted this suit for divorce, persuading her not to make any resistance and that all would be right, he at this time introducing testimony in his case to show that she was guilty of extreme cruelty and habitually indulged in a violent and ungovernable temper, is guilty of a fraud upon the court and.upon her' and upon her then unborn child.

"Whether the facts set up in the bill constitute a fraud we have therefore no doubt. ’ The joinder of the widow and of the children born subsequent to the divorce as plaintiff is not a misjoinder of parties plaintiff. Their 'rights, while riot identical in degree or in interest, are mutually dependent upon setting aside the decree, and as a consequence of a decree of this character they have each an interest.in the subject matter of the suit Avhich can be here readily adjudicated.

The primary relief sought is the setting aside the decree-of divorce, and all of the plaintiffs are interested upon the sam:e side of this question. We can see no necessity for requiring this administrator to be subjected to four distinct suits, all concerning the distribution of the property of the estate, the principal question in each of which (the setting, aside the decree of divorce) would be the same. Nor do we see anything, so far as this matter is concerned, in the objection of multifariousness. This bill does not embrace two or more distinct subjects within the meaning of the rule upon this matter.

The bill does not seek relief in respect to matters in their nature separate and distinct. “ If the object of the suit be single, but it happens that different persons have separate interests in distinct questions which arise.out of that single object, it necessarily follows.that such different persons must be brought before the court in order that the suit may conclude the whole subject.” Danl. Chy. Pldg. & Prac., 336. We have been able to find but one case treating of a like question. Johnson vs. Coleman, Administrator, et al., 23 Wis., 452.

The wife there sought to annul a judgment of divorce on the ground of fraud, and the court held , that the administrator and heirs were proper if not necessary parties. The next question raised by the appellant under this demurrer, which we examine here, is, whether this remedy by original bill in the nature of a bill of review, so far as the divorce is concerned, and an original bill in the matter of the administration, so far as it embraces other matters, is a remedy which a court of equity will sustain.

In cases where the husband is alive and the wife seeks to set aside a decree of divorce upon the ground of fraud upon his part, the usual method is a proceeding in the same cause after notice to him. Here the husband is dead, and we are at a loss to see how the purposes of this suit can be affected by proceedings in that suit. But however this may be, the proceeding by an original proceeding or an original bill m the nature of a bill of review has been sanctioned by many courts of equity in like cases, and we see no objection to it. 23 Wis., 452; 2 P. Wms., 73; 34 Ala., 455; 3 Barb., 616; 45 N. H., 110; 4 J. J.

Mar., 501; 37 Miss., 198; 62 Penn., 308; 5 Clark (Iowa), 232. It is insisted that this suit is barred by the statute of limitations. The cause of action accrued here to the widow and the children after the death of the husband. He died on the 25th December, 1879, and the “ action ” was commenced March 8, 1881, a period of less than one year and three months. There is no

section of the statute possibly applicable to this bill which would operate as a limitation in that time. The only other question remaining to be considered is the matter of the removal -of the present administrator, the son, and the substitution of the wife. The wife does not allege that she ever applied for letters. She having failed to apply, the appointment of the son was proper. The bill should be amended by striking out that portion of it which seeks his removal. The removal here is sought upon the ground that the wife has an absolute right to administer, whereas it is conditional upon her application.

This action as a matter of course will not prejudice any right which she or her children may have to his removal tor cause or conduct should they succeed in establishing the alleged fraud. This, we think, disposes of all the questions in the case. The order overruling the demurrer is reversed. The case will be remanded, with directions to enter an order sustaining the demurrer, with leave to amend the bill in such particulars as the foregoing opinion indicates is deemed necessary by this court.

The costs of this appeal will be taxed equally against the parties, as the principal grounds upon which the demurrer is here sustained were not urged in the Circuit Court, and for further proceeds ings.