Opinion
No. 33254.
June 6, 1938. Suggestion of Error Overruled June 30, 1938.
1. DIVORCE.
A valid marriage is essential to uphold a decree for alimony pendente lite against the alleged husband for support of the alleged wife.
2. APPEARANCE.
A party may appear in court by a plea, although no process has been served, and thereupon jurisdiction of the person is by the plea conferred on the court in so far as that point is concerned.
3. DIVORCE.
An answer in chancery court to a bill for divorce was a "plea" therein, such as conferred jurisdiction of defendant's person on the court.
4. DIVORCE.
The recitals of a decree of a court of general jurisdiction granting wife a divorce were not subject to collateral attack in wife's subsequent suit for alimony against another husband who denied validity of his marriage on ground that prior marriage was undissolved.
5. DIVORCE.
In wife's suit for alimony, decree awarding wife divorce from former husband, following recitals that cause came on to be heard on bill and "answer filed in said cause," and that court heard evidence of the parties, sufficiently established that court had jurisdiction of former husband's person, as respects defense that marriage between plaintiff and defendant was void because former marriage was undissolved.
APPEAL from the chancery court of Forrest county; HON. BEN STEVENS, Chancellor.
E.F. Coleman, of Purvis, for appellant.
The foundation for alimony of either pendente lite or permanent is a lawful marriage. There can be no alimony allowed where there is no lawful marriage. This principal of law is too well settled in this state to argue, but we cite the following cases decided by our Supreme Court:
McFarland v. McFarland, 64 Miss. 449, 1 So. 508; Reed v. Reed, 85 Miss. 126, 37 So. 642; Aldridge v. Aldridge, 116 Miss. 385, 77 So. 150.
A person already married who has obtained no divorce cannot marry another, and should a married person without obtaining a divorce remarry, that is marry again, then the last marriage would be absolutely void.
Clark v. Clark, 115 Miss. 726, 76 So. 638.
Then again a married person cannot contract a common law marriage; also cohabitation however long continued between a married person and an unmarried person will not ripen into a valid common law marriage.
Blanks v. Southern Railroad Co., 82 Miss. 703.
The appellee was never legally divorced from Mr. C.G. Slade. She attempted to obtain a divorce, but the proceedings were void and the decree of divorce was void for the reason that the court rendering the decree of divorce was without jurisdiction of the person of the said C.G. Slade. The appellee filed a bill for divorce against C.G. Slade on September 13, 1930, and on the same day the said defendant C.G. Slade filed a purported waiver of process.
This waiver is not sufficient to bring the defendant into court, and therefore the court had no jurisdiction of the defendant Slade.
Hemphill v. Hemphill, 34 Miss. 68; Byrne v. Jeffries, 38 Miss. 533; Industrial Investment Co. v. Standard Life Ins. Co., 170 Miss. 138, 149 So. 883.
A judgment or decree rendered without jurisdiction of the person of the defendant is absolutely void.
Theobold v. Deslande, 93 Miss. 208, 46 So. 712; Paepcke-Leicht Lbr. Co. v. Savage, 137 Miss. 11, 101 So. 709; McCoy v. Watson, 154 Miss. 307, 122 So. 368.
While the general rule is that alimony pendente lite will be allowed on motion, and the merits not inquired into, it is well settled that where the answer denies that there ever was a marriage and that averment, clearly, from the showing made appears to be true, it should not be allowed.
Reed v. Reed, 85 Miss. 126, 37 So. 642.
F.M. Morris, of Hattiesburg, for appellee.
The testimony undisputedly shows that the second marriage was a duly solemnized civil marriage and we submit that all of the presumptions are that this marriage is valid.
Where a duly solemnized second marriage is shown, the presumption arises that the first wife was either divorced or dead; the burden of proof being on the person claiming rights inconsistent with such presumption.
Howard v. Kelly, 71 So. 391, 111 Miss. 285, Ann. Cas. 1918C 1230; Aldridge v. Aldridge, 77 So. 150, 116 Miss. 385; McAllum v. Spinks, 91 So. 694, 129 Miss. 237; Harper v. Fears, 151 So. 745, 168 Miss. 505, 93 A.L.R. 341.
We submit that the burden of the proof was upon the defendant in the court below, appellant herein, to show the invalidity of the second marriage and since the second marriage is presumed to be valid and the first divorce presumed to be good, it was necessary for the appellant to have shown the court below that the former husband of the appellee, C.G. Slade, had not procured a divorce in any county in which he might have resided since September 13, 1930, or that he had not filed a bill of complaint for divorce in any state in America in which he might have resided, or in any other country in which he might have resided wherein a divorce can be obtained legally.
The appellant could not attack the validity of the final decree because such an attack would be a collateral one.
Hester v. Hester, 60 So. 6, 103 Miss. 13, Ann. Cas. 1915B 428; McAllum v. Spinks, 91 So. 694, 129 Miss. 237; Sykes v. Sykes, 139 So. 853, 162 Miss. 487; Kirby v. Kent, 160 So. 569, 172 Miss. 457, 99 A.L.R. 1303; Cratin v. Cratin, 174 So. 255, 178 Miss. 881.
The appellant is estopped from complaining of the defective decree and has forfeited his right to complain by his own laches.
Cratin v. Cratin, 174 So. 255, 178 Miss. 881.
The bill in this case in the court below alleged the lawful marriage between the parties, that two living children were born of the union, and charged the appellant with habitually cruel and inhuman treatment; that he was an habitual drunkard, and that he was guilty of adultery; alleged the inability of the appellee to support herself and children; and prayed that the appellant be required to pay temporary and permanent alimony for her own support and that of the children, and a reasonable attorney's fee.
The answer of appellant denied that the marriage between appellee and appellant was lawful, giving as a reason therefor that the appellee had been lawfully married to one C.G. Slade prior to her marriage to him, and that there had never been a legal divorce from Slade, and that they were now husband and wife. He denied the material allegations of the bill.
On the hearing the court below awarded the appellee the sum of $50.00 per month, to be paid by the appellant for the support of the appellee and the children, and granted an appeal, with supersedeas, except as to the custody of the children. On the hearing for alimony pendente lite, Mrs. Chambliss, on cross-examination, testified that she had previously married the said Slade in Forrest county, and they had lived together as husband and wife. They parted in 1928, in that county, where she has lived ever since. She did not know where Slade had lived since that time, except that in the year of this hearing he was in Forrest county. She filed a bill for divorce against Slade in 1930; and within a few days after the decree of divorce was granted in that county she married the appellant, Chambliss. She identified the bill in the divorce proceedings against Slade. In this connection the appellant, Chambliss, offered in evidence, without objection, the bill of complaint, waiver of process, and decree of the court, dated September 13th, 1930. The waiver of process was as follows:
"In the Chancery Court of Forrest County, Mississippi.
"Stella DuBose Slade v. C.G. Slade. Now comes the defendant, C.G. Slade, in the above styled and numbered cause and waives the right of the issuance of process and the service of process upon him as by law required, and hereby enters his appearance in the said cause for all purposes, and hereby agrees for the said cause to be tried at this term and finally disposed of and final decree entered. Witness my signature this the 13th day of September, 1930. C.G. Slade. Witness E.F. Coleman." On the back thereof was waiver of process, filed the 13th day of September, 1930, by M.T. Draughon, Clerk.
The final decree is as follows:
"Stella DuBose Slade v. C.G. Slade.
"This day this cause came on to be heard upon bill and answer filed in said cause, waiver or process and agreement to try the said cause, and the court having heard the evidence offered by the parties in the said cause, finds that the parties are of the white race, and that the allegations of the bill of complaint have been sustained, and that the complainant is entitled to the relief prayed for, to wit, a full and complete divorce. It is therefore ordered, adjudged and decreed by the court that the bonds of matrimony heretofore existing between the complainant, Stella DuBose Slade and the defendant, C.G. Slade be and the same are hereby dissolved and forever held for naught, and the parties hereto are forever divorced. It is further ordered and adjudged and decreed that the defendant pay all cost of this suit. Ordered, adjudged and decreed, this the 13th day of September, 1930. T. Price Dale, Chancellor."
The decree was filed on that date with the Clerk.
No further material evidence was offered on the issue of whether or not the marriage relation existed between Mrs. Chambliss and her husband. No question is raised as to the propriety of the decree awarding temporary alimony to Mrs. Chambliss, provided she was lawfully married to him. The contention of the appellant here is that the decree of divorce between Mrs. Chambliss and Slade was void, hence there was no valid marriage between the appellee and himself.
A valid marriage is essential to uphold a decree for alimony pendente lite against the husband for support of the alleged wife. See McFarland v. McFarland, 64 Miss. 449, 1 So. 508; Reed v. Reed, 85 Miss. 126, 37 So. 642; Aldridge v. Aldridge, 116 Miss. 385, 77 So. 150.
The precise contention here presented is that the waiver of process filed in the case at bar was not effective to confer jurisdiction of the person of Slade upon the Chancery Court in the divorce case, and that the decree set forth herein is void under the cases of Hemphill v. Hemphill, 34 Miss. 68, 69; Byrne, Vance Co. v. Jeffries, 38 Miss. 533; Industrial Investment Co. v. Standard Life Ins. Co., 170 Miss. 138, 149 So. 883.
In the Hemphill Case, supra, a waiver of process, not to be differentiated from the one at bar, was the basis of the judgment of the court. It was there held that the judgment rendered thereon was absolutely void for want of jurisdiction by the court over the person of the defendant, "who could only be brought into court by the process prescribed for that purpose, or who could only come by plea, or in proper person without plea, and make the necessary waiver and consent for judgment to be entered against him." The evidence in that case disclosed that no such consent of the defendant there was ever given.
In the Vance Case, supra, it was held that the Hemphill Case really meant that appearance to an action could only be effected by a plea or by appearance in proper person without plea in open court and making the necessary waiver and consent for judgment, and that it could not be done out of term time by entry on the complaint. In that case the defendant had appeared and executed a waiver in the office of the clerk of the court, and required the clerk to attest same. The judgment thereon was held valid.
In Industrial Investment Co. v. Standard Life Ins. Co., supra, this Court held that a notation on a declaration whereby the defendant's attorney waived process and entered the defendant's appearance during the term without attestation by the clerk of the court did not authorize a default judgment, and therefore such judgment against the debtor furnished no basis for recovery from a garnishee.
In the case at bar it is not at all clear that the decree of divorce granted in 1930 was a default decree. It recites that it heard the evidence of the parties; but it clearly appears from the judgment that the case was heard upon the bill of complaint, "and answer filed in said cause." Under all the authorities a party may appear in court by a plea, although no process has been served; and thereupon, in such case, jurisdiction of the person is by the plea conferred upon the court in so far as that point is concerned. The answer in the Chancery Court to a bill for divorce is unquestionably a plea therein, such as confers jurisdiction of the person upon the court. This is a collateral attack upon the Slade decree of divorce, and the court being a court of general jurisdiction, the recitals therein are not subject to attack here; and in this respect is governed by the cases of Hester v. Hester, 103 Miss. 13, 60 So. 6, Ann. Cas. 1915B, 428; Cocks v. Simmons, 57 Miss. 183; Cason v. Cason, 31 Miss. 578; Cannon v. Cooper, 39 Miss. 784, 80 Am. Dec. 101. In fact, nothing was offered which disputed the recital of the decree of divorce. It stands unchallenged that the court then found that an answer was on file — filed in the case at the time of the hearing; also, that it heard the evidence of the parties. We conclude that the decree of the lower court awarding temporary support to the wife and children of Chambliss is approved, there being no other question presented.
Affirmed.