¶1dissents. Jurisdiction to hear and determine divorce cases depends upon the grant of the statute and not upon the general equity powers of the court. Ward v. Sampson, 395 Ill. 353. Residence of the plaintiff in the state one year before instituting suit is a prerequisite to the filing of the complaint in cases like that before us. Section 2, statute on Divorce, Ill. Rev. Stat. 1947, ch. 40, par. 3 [Jones Ill. Stats. Ann. 109.170]; Way v. Way, 64 Ill. 406. False testimony as to the residence of the plaintiff is a fraud upon the court and gives only colorable jurisdiction of the case. In re Estate of Goldberg, 288 Ill. App. 203. Defendant’s petition to vacate the decree is based on the alleged false, fraudulent and perjured testimony of plaintiff and Ms witnesses as to plaintiff’s residence in the State. The allegations of the petition as to this testimony must he taken as true on this appeal. Aaron v. Dausch, 313 Ill. App. 524, 532. This fraud invalidates the decree. In People v. Sterling, 357 Ill. 354, where plaintiff by complaint filed in Cook county sought to vacate and' set aside a decree of the circuit court of Sangamon county, claiming that the decree was a nullity because of the alleged fraud of a former attorney general of the State in procuring the dismissal of his complaint for want of equity, the court said (364):
“In considering this point it must be borne in mind that there are two classes of frauds drawn in question in cases of this kind: First, there is that kind of fraud which prevents the court from acquiring jurisdiction or merely gives it colorable jurisdiction; and second, that kind of fraud which occurred in the proceedings of the court after jurisdiction had been obtained, such as perjury, concealment, and other chicanery. The first variety of fraud will invalidate the decree, rendering it an entire nullity. On the other hand, it is well established that the second class has no such legal effect.”
¶2A judgment procured by fraud, merely giving the court colorable jurisdiction, may be vacated at any time. Barnard v. Michael, 392 Ill. 130. Consent or acquiescence cannot confer jurisdiction of the subject matter. Dunavan v. Industrial Commission, 355 Ill. 444. In Toman v. Park Castles Apt. Bldg. Corp., 375 Ill. 293, the court said:
“Whether the question of jurisdiction was raised in the lower court is immaterial. There can be no waiver of jurisdiction of the subject matter where the trial court lacked jurisdiction to enter the order appealed from. (Kudla v. Industrial Com. 336 Ill. 279.) ”
¶3In the instant case it is immaterial that issue was joined as to the jurisdictional facts of the plaintiff’s residence and that former counsel for defendant failed to assert the fraud now charged in a prior motion to vacate the decree in which he sought to excuse his failure to appear at the trial. The cause was heard as a default matter and there has never been a contest of the truth or falsity of the testimony as to plaintiff’s residence in the State. A void judgment may be vacated at any time and the doctrines of laches and estoppel do not apply. Ward v. Sampson, supra; Thayer v. Village of Downers Grove, 369 Ill. 334.
¶4To hold, as does the court, that defendant is without remedy because the decree “was not challenged by appeal, by bill of review, or by any other approved procedure,” is to deny all relief. The introduction of extraneous evidence is necessary to show that the testimony as to plaintiff’s residence is false, fraudulent and perjured. Such testimony is admissible in proceedings to vacate a void judgment. Herb v. Pitcairn, 384 Ill. 237; Riddlesbarger v. Riddlesbarger, 324 Ill. App. 176, 187. It cannot be introduced on appeal. There is nothing in the record on which to predicate a right to a bill of review or a bill in the nature of a bill of review. Wood v. First Nat. Bank of Woodlawn, 383 Ill. 515, 521. What other "approved procedure ’’ was open to defendant the court does not point out, and none is known to the writer of this dissent other than that followed by the defendant — the filing of a motion to vacate the decree. Almost without exception a motion to vacate is considered a direct attack on the decree. See 31 Am. Jur., Judgments, sec. 613, and cases collected in Words and Phrases (Perm. Ed.) Vol. 7, pp. 582-587. However, in Barnard v. Michael, 392 Ill. 130, it is stated that; a motion to vacate becomes a collateral attack if made more than 30 days after entry of the decree. Whether the motion is a direct or collateral attack is immaterial because the judgment under consideration is vulnerable to collateral as well as direct attack. Beck v. Lash, 303 Ill. 549. Moreover, because of the nature of the fraud practiced on the court and because the State is a party to every divorce suit and vitally concerned that no fraudulent decree be entered, the diligence or lack of diligence of the parties is of no importance, and rules of procedure cannot and should not be permitted to prevent a thorough investigation of the charges made. Excerpts from the opinion in Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U. S. 238, quoted with approval by this court in Skelly Oil Co. v. Universal Oil Products Co., 338 Ill. App. 79, are persuasive. Meeting with opposition in the patent office, Hartford procured the publication in a trade journal of an article favorable to the patentability of its invention under the name of an apparently disinterested person and submitted the article to the patent office in support of its application; the article had in fact been prepared by agents of Hartford and the purported author paid a large sum for the use of his name; Hartford obtained the patent and later brought suit for infringement against Hazel; from an adverse decree in the district court, Hartford appealed and submitted the spurious article to the court in support of its contentions on appeal; the decree of the district court was reversed and Hartford’s claims of infringement sustained; a number of years later proof of the spuriousness of the article used by Hartford in the patent office and before the court of appeal was revealed in an anti-trust prosecution; Hazel then presented its petition to the court of appeals to vacate its former judgment because of the fraud perpetrated on the court; the court of appeals refused to act; in reversing that court the Supreme Court said (245):
“Every element of the fraud here disclosed demands the exercise of the historic power of equity to set aside fraudulently begotten judgments. This is not simply a case of a judgment obtained with the aid of a witness who, on the basis of after-discovered evidence, is believed possibly to have been guilty of perjury. . . . we find a deliberately planned and carefully executed scheme to defraud not only the Patent Office but the Circuit Court of Appeals.”
¶5In answering the charge that the defendant Hazel had not been diligent, the court said (246):
“But even if Hazel did not exercise the highest degree of diligence, Hartford’s fraud cannot be condoned for that reason alone. This matter does not concern only private parties. There are issues of great moment to the public in a patent suit. . . . Furthermore, tampering with the administration of justice in the manner indisputably shown here involves far more than an injury to a single litigant. It is a wrong against the institutions set up to protect and safeguard the public, institutions in which fraud cannot complacently be tolerated consistently with the good order of society. Surely it cannot be that preservation of the integrity of the judicial process must always wait upon the diligence of litigants. The public welfare demands that the agencies of public justice be not so impotent that they must always be mute and helpless victims of deception and fraud. ’ ’
¶6The responsibility of State courts in the preservation of the integrity of the judicial processes is equal to that resting upon the federal courts. Each court has like powers. The issues involved in a divorce suit are of no less moment to the public than those involved in a patent suit. The court as representative of the State in every divorce case is charged with the duty of preventing the granting of an improper divorce, and in the performance of that duty disregards the pleadings and the established rules of procedure in equity and the indifference of the parties. In Way v. Way, 64 Ill. 406, where the sufficiency of the evidence to establish the residence of the plaintiff was involved, the court said, ‘ ‘ Though a suit for a divorce, upon its face, is a mere controversy between the parties to the record, yet the public occupies the position of a third party. Society has an interest in every marriage, and it is the duty of the State, in the conservation of the public morals, to guard the relation, and to see that the status of all applicants for its dissolution should be established.” Similar views were expressed in Dunham v. Dunham, 162 Ill. 589, and Leland v. Leland, 319 Ill. 426. In Floberg v. Floberg, 358 Ill. 626, 629, the court said:
‘ ‘ The State, as the sovereign, has an interest in maintaining the integrity and permanency of the marriage relation. . . . While the point is not raised by the appellant that the full period of one year’s desertion had not run at the time of the filing of the cross-bill, yet it is the duty of the court in this character of a case of its own motion to examine that question and determine whether the complainant had deserted the appellee for the period of one full year prior to the filing of the cross-bill.”
¶7Johnson v. Johnson, 381 Ill. 362, was tried under the practice prevailing prior to the Civil Practice Act [Ill. Rev. Stat. 1949, ch. 110, par. 125 et seq.; Jones Ill. Stats. Ann. 104.001 et seq.]; defendant moved at the close of plaintiff’s evidence to dismiss the complaint; this motion was denied; following the rule obtaining in general equity cases before the adoption of the Civil Practice Act defendant was denied the right to present her defense; on appeal she argued that, “because the State, representing society, is a party to all divorce cases, the rule which governs in other chancery matters is inapplicable.” The Supreme Court said (372):
“. . . under the discretionary power existing in the court, acting in a divorce proceeding and as a' representative of the State, the court should have allowed defendant to withdraw her oral motion to dismiss plaintiff’s complaint and should have permitted her to introduce such evidence as was pertinent to the issues formed by the pleadings.”
¶8The court also quoted from 2 Bishop on Marriage, Divorce and Separation (663, 664), where, in discussing the position of the State as a party to every divorce suit the author there said, “But this party, unlike the others, never loses a right by laches.” In the latest Supreme Court case brought to our attention (Ollman v. Ollman, 396 Ill. 176) objection was made that the defense of condonation was not available to the defendant because not alleged in his .answer. After stating that it has long been the general rule in chancery that an affirmative defense, to be availed of, must be set up in the answer, even though the defense appeared to be within the evidence, the court said (p. 181): “This is true as a general proposition, but an action for divorce involves interests other than those of the parties litigant.” And continuing (p. 182): “. . . and so, whenever a defense comes out in the evidence, whether alleged or not, it is fatal to the proceeding, (Johnson v. Johnson, 381 Ill. 362.) This is true, not because the defendant has any just right to take, advantage of a defense which he has not pleaded, but because the public interest is involved, and the conscience of the court, appealed to by this interest, does not permit the divorce unless the facts represented on the whole record justify it. If it were otherwise, divorces would be granted in cases where the evidence disclosed that no right to a divorce existed, and the public good, which suffers from every dishonest divorce and from every one not as well within the spirit of the statute as within its terms, would be sacrificed to rules of procedure.” And further (p. 183) the court said: “Hence, whenever in the course of the trial, it appears that the action is collusive or barred, it is the duty of the court, regardless of the pleadings, fully to inquire, of its own motion, as the representative of the State, into the facts and circumstances and to act in accordance with the facts thus developed.” This court, following these cases, has expressed similar views in Mischler v. Mischler, 333 Ill. App. 214, and Borin v. Borin, 335 Ill. App. 450. This duty of the court to safeguard the interests of the public does not end with the entry of the decree. Upon presentation of defendant’s petition it was not only within the power of the court but it was the duty of the court to cause an investigation into the truth of the allegations respecting the testimony as to plaintiff’s residence in the state prior to the filing of the complaint.
¶9The order appealed from should be reversed and the cause remanded for further proceedings to determine the truth of defendant’s charges.