Opinion
No. 35824.
April 9, 1945. Suggestion of Error Overruled May 14, 1945.
1. DIVORCE.
An affidavit that the causes for divorce stated in bill were true as stated did not cover the allegations in the bill as to the defendant's nonresidence and post office address, since nonresidence is not a ground for divorce, and hence was not sufficient as an affidavit for publication (Code 1942, sec. 1852).
2. DIVORCE.
Where former wife died seized of realty an interest in which would be inherited by former husband if divorce obtained by former wife should be set aside, former husband could maintain proceeding to set aside divorce after wife's death, though divorce decree did not on its face deal with any property rights of former husband.
3. DIVORCE.
The rule that an application for vacating a judgment must allege a meritorious claim or defense to the rendition of the judgment does not apply in a proceeding in the court rendering the judgment to vacate it for want of jurisdiction of the person.
4. DIVORCE.
Petition showing that divorce was obtained by wife, subsequently deceased, from defendant as a nonresident without compliance with codal provision in such cases, that petitioner was not a nonresident and never received notice of pendency of divorce proceeding, and that wife died seized of certain realty an intrest in which would be inherited by petitioner if divorce decree should be set aside, stated a cause of action (Code 1942, sec. 1852).
APPEAL from chancery court of Forrest county, HON. LESTER CLARK, Chancellor.
J. Ed. Franklin, of Jackson, and J.R. Tally and T.J. Wills, both of Hattiesburg, for appellant.
The court had no jurisdiction of the marital status under the allegations of the bill. The only allegation in the bill of complaint as to the residence of either the complanant or the defendant is the following allegation as to the complainant: "That the complainant is a citizen of the City of Hattiesburg, in said county and state, and has been such citizen for many years last past."
Jones v. Jones, 67 Miss. 195, 6 So. 712; Wright v. Wright, 200 Ala. 489, 76 So. 431; Cooper v. Cooper, 210 Ala. 13, 97 So. 66; Phelan v. Phelan, 12 Fla. 449; Gredler v. Gredler, 36 Fla. 372, 18 So. 763; Beekman v. Beekman, 53 Fla. 858, 43 So. 923; Simmons v. Simmons (Fla.), 165 So. 45; Code of 1942, Sec. 2736; Amis on Divorce and Separation in Mississippi, Sec. 241; Griffith's Mississippi Chancery Practice, Sec. 22; 2 Words and Phrases 1172; 9 R.C.L. 539, Sec. 3.
The court had no jurisdiction of the person of the defendant for the reason that there was no affidavit of non-residence and the decree attacked was null and void.
Belt et al. v. Adams, 124 Miss. 194, 86 So. 584; Ponder et al. v. Martin et al., 119 Miss. 156, 80 So. 388; Code of 1942, Sec. 1852; Amis on Divorce and Separation, Secs. 244, 246; Griffith's Mississippi Chancery Practice, Sec. 236.
Appellant's petition to vacate and set aside the decree in the divorce proceeding is a direct attack and in no sense a collateral attack.
McCray v. McCray et al., 137 Miss. 160, 102 So. 174; Burns v. Burns, 133 Miss. 485, 97 So. 814; Cratin v. Cratin, 178 Miss. 881, 173 So. 415, 174 So. 255; Moore v. Summerville et al., 80 Miss. 323, 31 So. 793; Diggs et al. v. Ingersoll (Miss.), 28 So. 825; Burks v. Burks, 66 Miss. 494, 6 So. 244; Hume et al. v. Inglis et al., 154 Miss. 481, 122 So. 535; McKinney et al. v. Adams, 95 Miss. 832, 50 So. 474.
The appellant's petition to vacate, annul and set aside the decree in the divorce proceedings, being a direct attack, can be made at any time (laches alone being considered), and it was not incumbent upon the appellant to allege that he had no knowledge of the pendency of that proceedings.
McCray v. McCray, supra; Burns v. Burns, supra; Cratin v. Cratin, supra.
It was not necessary that the divorce proceedings involve property rights to be subject to direct attack. However, appellant's petition to vacate and set aside the said decree of March 9, 1944, attempting to grant the divorce, does allege that property rights are involved.
Travis Travis, of Hattiesburg, for appellee.
The petition to vacate is fatally defective and is entirely lacking in certain vital, necessary allegations. There is no allegation that the present situation was not due to any inexcusable neglect; that the facts presented were not known at the time of the decree, or, if known, that he was prevented by fraud from presenting such facts during complainant's life; that he had and has a meritorious defense; and that he has not accepted the benefits of the decree. The omission of any one of these allegations, to say nothing of all combined, is, as we respectfully submit, fatal to the relief sought.
Stewart et al. v. Brooks, 62 Miss. 492; Strickland v. Webb, 152 Miss. 421, 120 So. 168; Walton v. Gregory Funeral Home, 170 Miss. 129, 154 So. 717; Lamar v. Houston, 183 Miss. 260, 184 So. 293; Griffith's Mississippi Chancery Practice, Sec. 645.
Decrees of divorce, like other decrees, are presumed to be valid, being decrees of a court of general jurisdiction, and this is true whether the attack is direct or collateral.
Brotherhood of Railroad Trainmen v. Agnew, 170 Miss. 614, 155 So. 204; Broom et al. v. Board of Supervisors of Jefferson Davis County, 171 Miss. 586, 158 So. 344; McAllum et al. v. Spinks et al., 129 Miss. 237, 91 So. 694; Cocks v. Simmons, 57 Miss. 183; Hester v. Hester, 103 Miss. 13, 60 So. 6, Ann. Cas. 1915B, 428; Allen, Trustee, v. Dicken, 63 Miss. 91-93; Cratin v. Cratin, 178 Miss. 881, 174 So. 255; Cotton v. Harlan, 124 Miss. 691, 87 So. 152; McIntosh v. Munson Road Machinery Co., 167 Miss. 546, 145 So. 731; Alabama v. V.R. Co. v. Bolding, 69 Miss. 255, 13 So. 844, 845, 30 Am. St. Rep. 541; Amis on Divorce and Separation in Mississippi, Sec. 305.
A divorce decree cannot be vacated after the death of complainant, even though void, unless property rights were affected thereby.
Cratin v. Cratin, supra; Ellis v. Ellis, 152 Miss. 836, 119 So. 304; White v. Williams, 154 Miss. 897, 124 So. 64, 159 Miss. 732, 132 So. 573; Kirschner v. Dietrich, 110 Cal. 502, 43 P. 1064; Adamson v. Snider, 131 Kan. 284, 291 P. 744; Zoellner v. Zoellner, 46 Mich. 511, 9 N.W. 831; Roberts v. Roberts, 19 R.I. 349, 33 A. 872; Amis on Divorce and Separation in Mississippi, Sec. 288; 17 Am. Jur. 378, Sec. 462.
The divorce proceedings were regular in all respects. The allegations of the original bill fully comply with the law in all respects. It complies with the law with reference to residence of complainant. The allegation to the effect that complainant is a citizen of the City of Hattiesburg, in said county and state, and has been such citizen for many years last past is the full equivalent of alleging that the complainant has been an actual bona fide resident within the state for one year next preceding the commencement of the suit, and the authorities so hold.
Bilbo v. Bilbo, 180 Miss. 536, 177 So. 772; Hancock v. Reedy, 181 Miss. 830, 846, 180 So. 81; Weisinger v. McGehee, 160 Miss. 424, 432, 134 So. 148; McHenry v. State, 119 Miss. 289, 80 So. 763; Warren v. Warren, 73 Fla. 764, 75 So. 35; Keelin v. Graves, 129 Tenn. 103, 165 S.W. 232, L.R.A. 1915A, 421; Needles v. Needles (Tex. Civ. App.), 54 S.W. 1070; Klasner v. Klasner (N.M.), 170 P. 745; Flyn v. Flyn, 171 Cal. 746, 154 P. 837; Slaughter-House cases, 21 L.Ed. 408; Constitution of 1890, Sec. 8; U.S. Constitution, Art. 14; Amis on Divorce Separation in Mississippi, Sec. 241; 11 C.J. 776, Sec. 2-B; 17 Am. Jur. 592, Sec. 7.
The bill is a "sworn bill" with all essential elements, including the non-residence of the defendant, within the meaning of the provisions of Section 1852, Code of 1942, and the allegations therein as to non-residence is an exact compliance with such statute.
Winston v. McLendon, 43 Miss. 254; Yeizer et al. v. Burke, Watt Co., 3 Smedes M. (11 Miss.) 439; Redus v. Wofford, 4 Smedes M. (12 Miss.) 579; Brooks v. Snead, 50 Miss. 416, 418; Davis v. Cass, 72 Miss. 985, 989, 18 So. 454; McNeill v. McNeill, 125 Miss. 277, 284, 87 So. 645; MacMahon v. MacMahon, 171 Ala. 338, 54 So. 165; Amis on Divorce and Separation in Mississippi, Sec. 107, p. 153; 9 R.C.L. 418, Sec. 218.
The bill for divorce was sufficient in absence of demurrer, even though averments did not meet requirements.
Pierce v. Pierce (Miss.), 38 So. 46.
Currie Currie, of Hattiesburg, for appellee.
The affirmative averment in the bill of complaint "that the Complainant is a citizen of the City of Hattiesburg, in said county and state" is entirely sufficient and charges as a matter of law that she was a resident of said city, county and state for many years last past. That phrase in the bill of complaint is sufficient.
Gruetter v. Cumberland Telephone Telegraph Co., 181 F. 248; In re Rousos, 119 N.Y. Supp. 34.
The decree of the lower court shows on its face that the court inquired into the question of its jurisdiction and expressly found and decreed on the question of its jurisdiction, "that the court has jurisdiction to hear and determine said cause."
The words "last past" as used in the bill of complaint referred to the 27th day of January, 1944, the date on which the bill was filed, and relate back, and read in connection with the words "and has been such citizen for many years" necessarily mean that she had been a resident citizen of the City of Hattiesburg, County of Forrest, State of Mississippi, for more than one year next preceding the date of the filing of the bill, because "many years" necessarily means more than one year.
Burhans v. Vanness, 10 N.J.L. (5 Halst.) 102, 107; Brown v. Hankerson (N.Y.), 3 Cow. 70, 72.
The failure of an affidavit for publication of summons to state that the defendant is a non-resident or is absent from the state or is a transient, or that his residence is unknown, as required by statute, does not render a default judgment void on collateral attack, if the record shows that the court considered the question of non-residence and found that the facts required to be shown by the affidavit actually existed.
Noonan v. Montgomery (Okla.), 25 A.L.R. 1251.
There is no defect or insufficiency in the affidavit of the complainant to the bill of complaint, and the affidavit required by said Section 1416, Code of 1930, to be made by the complainant to a bill of complaint for divorce is the only affidavit which is required to be made by the complainant to a bill of complaint for divorce, and it is respectfully submitted that under said statute the bill of complaint was properly sworn to and that there was no defect or insufficiency in the affidavit.
Code of 1930, Sec. 1416.
The attack upon a judgment is a "collateral attack," if the action or proceeding has an independent purpose and contemplates some other relief or result than the mere setting aside of the judgment, although the setting aside of the judgment may be necessary to secure such independent purpose.
O'Neill v. Potvin, 13 Idaho 721, 93 P. 20, 21; Morrill v. Morrill, 20 Or. 96, 23 Am. St. Rep. 95; Cohen v. Portland Lodge No. 142, B.P.O.E. et al., 144 F. 266; Alford v. Guffy (Ky.), 115 S.W. 216, 217; 7 Enc. of U.S. Supreme Court Reports, pp. 614-5, par. 12.
Unless the decree of divorce is absolutely void, a complete nullity on the face of the record, it is not subject to collateral attack, and it is respectfully submitted that the decree of divorce is not void — a mere nullity on the face of the record.
Argued orally by J. Ed. Franklin and T.J. Wills, for appellant, and by S.E. Travis and J.K. Travis, for appellee.
On the 9th day of March, 1944, Mrs. Jessie P. Walters Evans was granted a decree of divorce in the court below against her husband Cullen E. Evans. Mrs. Evans died in May, 1944, survived by a daughter, Mrs. Louise Walters Brown. On June 20, 1944, Cullen E. Evans filed a petition in the court below praying the court to vacate this divorce decree and hold it for nought, making Mrs. Louise Walters Brown a party defendant thereto. Mrs. Brown would be her mother's only heir at law if this divorce decree is valid. Among the reasons alleged for vacating this decree is that the divorce was granted on publication for the defendant therein as a non-resident without compliance with Section 1852, Code 1942, which provides that "if the defendant in any proceeding in the chancery court be shown by sworn bill or petition, or by affidavit filed, to be a non-resident of this state, . . . and the post office of such defendant be stated in the bill, petition or affidavit," etc., publication in the manner directed by the statute shall be made for him.
The bill for a divorce alleges "that the said defendant is a non-resident of the State of Mississippi, his present residence and post office address being 208 Shirley Street, DeRidder, State of Louisiana." The affidavit of this bill of complaint recites that "the said bill is not filed by collusion with the said defendant for the purpose of obtaining a divorce, but that the causes for divorce stated in said bill are true as stated." The petition for vacating this decree alleges that no other affidavit was made in the case by the complainant therein relative to his non-residence and post office address; that he is not a non-resident of this state, was not at DeRidder, Louisiana, and did not receive the notice of the pendency of the divorce proceeding mailed to him there by the clerk of the court.
A demurrer to this petition was sustained by the court below, and the case is here on appeal to settle the principles thereof.
Counsel for the appellee say that the words in the affidavit to this bill for a divorce "that the causes for divorce stated in said bill are true as stated" covers the allegation in the bill as to the defendant's non-residence and post office address. With this we are unable to agree, for non-residence is not a ground for divorce, consequently, there was no affidavit on which publication for the defendant could have been made. Amis on Divorce and Separation, Section 246.
The divorce decree does not on its face deal with any property rights of the appellant, because of which counsel for the appellee say that this petition to vacate the decree will not lie. The petition alleges that the appellee died seized and possessed of certain described real property, an interest in which would devolve on the appellant by inheritance if this divorce decree should be set aside. This is a property right within the rule invoked by the appellee. Cratin v. Cratin, 178 Miss. 881, 173 So. 415, 174 So. 255; McCray v. McCray, 137 Miss. 160, 102 So. 174.
The petition does not allege that the appellant had a meritorious defense to Mrs. Evans' bill for a divorce, but the rule that an application for vacating a judgment or decree must allege a meritorious claim or defense, as the case may be, to the rendition of the judgment or decree does not apply in a proceeding in the court rendering the judgment or decree to vacate it for the want of jurisdiction of the person. Newman v. Taylor, 69 Miss. 670, 13 So. 831; Moore v. Hoskins, 66 Miss. 496, 6 So. 500; Myer Bros. v. Whitehead, 62 Miss. 387. The demurrer should have been overruled.
Reversed and remanded.