Summary
In Lamar v. Houston, 183 Miss. 260, 184 So. 293, a divorce decree was collaterally attacked on the basis that plaintiff in the divorce action had perpetrated a fraud on the court.
Summary of this case from Heckathorn v. HeckathornOpinion
No. 33306.
November 7, 1938.
1. JUDGMENT.
Ordinarily, a judgment or decree which has been rendered because of fraud on the jurisdiction of the court may be impeached either by direct or collateral attack, but the person seeking to impeach such judgment or decree may be denied relief on account of laches.
2. JUDGMENT.
Generally, the acts for which a court of equity may, on account of fraud, set aside or disregard a judgment or decree on collateral attack between the same parties, have relation only to fraud which is extrinsic or collateral to the matter tried by the first court, and not to fraud in the matter on which the judgment was rendered.
3. JUDGMENT.
Freedom from laches is generally a prerequisite to the granting of equitable relief from a judgment or decree not void on its face.
4. JUDGMENT.
A defendant, who has been served with notice for the time required by law of the pendency of a suit and is afforded an opportunity to appear and raise the question of jurisdiction and fails to do so but acquiesces in the judgment or decree for such length of time as to work prejudice to the rights of third persons who may have acted on the faith of the validity of such judgment or decree, may be denied equitable relief from such decree or judgment.
5. JUDGMENT.
One who seeks, after the expiration of period for appeal or bill of review, to attack and reopen a decree, should not only show want of knowledge of the proceeding complained of, and of all circumstances calculated to put one on inquiry to lead to knowledge, but should also exclude the conclusion of inexcusable ignorance as to the suit.
6. EQUITY.
The statute of limitations has no application to the doctrine of laches.
7. DIVORCE.
Where wife, after obtaining divorce decree which affirmatively disclosed that court which rendered decree had jurisdiction of parties and subject matter, remarried, first husband, after more than one year and three months had expired from rendition of decree, could not impeach decree on ground that wife perpetrated fraud on jurisdiction of court, since suit to set aside the divorce decree would render wife's second marriage and her living with her second husband illegal and in violation of the laws and would render illegitimate the children, if any, born of the second marriage.
APPEAL from chancery court of Bolivar county; HON. R.E. JACKSON, Chancellor.
Hubert S. Lipscomb, of Jackson, and A.T. Patterson and E.L. Lamar, both of Calhoun City, for appellant.
It is, of course, wholly unnecessary for us to call the court's attention to the fact that the demurrer admits the truthfulness of every material allegation in the bill of complaint. In passing on this case this court must assume all of these allegations to be absolutely true. If the allegations of appellant's bill are true as this court must assume they are, the decree of the Chancery Court of Quitman County, Mississippi, is void.
Section 1416, Code of 1930.
We are not unmindful that in many cases a substantial compliance with a prescribed form of affidavit is sufficient. Divorce cases, however, constitute an exception to this general rule. There must be a literal compliance.
Amis, Divorce and Separation in Mississippi, page 349; Section 1417, Code of 1930.
The appellee alleged in her Quitman County bill that she had been a resident of that county all of her life and that she and the appellant separated in that county. The bill of complaint herein sets up that these allegations were absolutely false, that appellee knew them to be absolutely false and made them with the studied design and intent to perpetrate a fraud on the jurisdiction of the Chancery Court of Quitman County, Mississippi, which, had the true facts touching the residence of the parties and place of separation been alleged, would not have assumed jurisdiction of said cause.
As stated by Judge Amis in his "Divorce and Separation in Mississippi:" "The suit must be brought in that county having territorial jurisdiction of the controversy. As to those matters there can be no waiver or consent." The proceeding in Quitman County was a fraud on the jurisdiction of the court, and any decree rendered therein was a nullity and the appellant was entitled to ignore the whole thing.
The decree of the Chancery Court of Quitman County may be collaterally attacked.
Plummer v. Plummer, 37 Miss. 185; Freeman on Judgments (3 Ed.), sec. 117; Watts v. Watts, 123 Miss. 812, 86 So. 353.
It is well settled in this state that judgments and decrees procured by fraud are void both in equity and at law.
McCraney v. N.O. N.E.R. Co., 128 Miss. 248, 90 So. 881; Christian v. O'Neal, 46 Miss. 669.
We wish to stress the fact that the decree in the Quitman County case is not merely voidable or irregular, but if the allegations of the bill of complaint herein are true, and they must be so taken for the purposes of the demurrer, the said decree is absolutely void.
Therbald v. Deslonde, 93 Miss. 208, 46 So. 712.
The principle is well settled in this state that, where a decree is absolutely null and void, it is subject to attack anywhere collaterally or otherwise.
Paepcke-Leicht Lbr. Co. v. Savage, 137 Miss. 11, 101 So. 709; Amis, Divorce and Separation in Mississippi, sec. 304, page 429.
We are not unmindful that under Section 159 of the Constitution of 1890 the Chancery Court is vested with full jurisdiction in matters of divorce and alimony. "But the circumstances under which, the causes for which, and the manner in which such jurisdiction may be exercised is wholly prescribed by statute." (Amis, page 430).
The Legislature has specifically prescribed the place where the bill must be filed. Under the allegations of the bill of complaint herein, the appellee's bill could not possibly have been filed in the Chancery Court of Quitman County, Mississippi. Consequently that court never acquired any territorial jurisdiction, and all proceedings had and done in that cause were utterly void.
Roberts Smith, of Cleveland, for appellee.
Exclusive jurisdiction of all divorce matters is conferred upon the Chancery Court by the Constitution, and Section 1417, Code 1930, fixes the place in which the bill must be filed.
The bill alleged that complainant (appellee here) "is a citizen and resident of Quitman County and has been all of her life and that the defendant (appellant here) is working for the Mississippi State Highway Department and in said employment is in various counties of the State of Mississippi, his whereabouts being uncertain, and at this particular time your complainant believes that he is in Grenada County, Mississippi." The bill further alleged "that on or about the 20th day of June, 1936, the complainant separated from defendant in Quitman County, Mississippi, . . ."
We think that there can be no doubt but that the bill does not specifically state that the defendant was a resident of Quitman County at the time of the separation of the parties herein but it does so allege that complainant had been a resident of Quitman County all of her life which is equivalent to an allegation that the defendant had been also a resident of that county since the marriage of the parties, for unless the husband was a resident of Quitman County the wife could not as a matter of law continue to reside there, for after her marriage to appellant her residence is fixed by law as the residence chosen by the husband. The fact that the bill alleged that defendant's employment carried him into many counties in the state would not affect his residence, for residence is a matter of intention.
Amis, Divorce and Separation, sec. 241; Hancock v. Reedy, 180 So. 81; Bilbo v. Bilbo, 177 So. 772.
This is a collateral attack. In distinguishing between direct and collateral attacks on decrees, Judge Amis in his Divorce and Separation in Mississippi, section 304, said: "A direct attack on a judgment or decree is a proceeding whereby it is sought to amend, correct or vacate it, or to enjoin or prevent its execution. A collateral attack, however, is such a proceeding as either ignores such judgment or decree, or else impeaches it as being a nullity without any force or effect in that particular case, but does not seek to have it set aside and declared void ab initio. McKinley v. Adams, 50 So. 474."
2 Words and Phrases, pages 1249 and 1250; Hester v. Hester, 103 Miss. 13; Cully v. Shirk, 31 Am. St. Rep. 414.
The decree not shown on its face to be void is not subject to collateral attack.
Kirby v. Kent, 160 So. 569; Robinson v. Robinson, 138 P. 288.
Although judgment is obtained by false testimony, the defendant is not entitled to relief where he has been served with process, and neglects to appear and defend, and suffers judgment to be rendered by default.
Cairo St. L.R. Co. v. Holbrook, 92 Ill. 297; South Haven and Eastern Ry. Co. v. Culver, 122 N.W. 95.
A divorce will not be vacated on the ground that it was based on perjured testimony knowingly procured by the libellant, after a marriage has been entered into on the faith of the decree, and a child born of the marriage.
Zeitlin v. Zeitlin, 202 Mass. 205, 86 N.E. 762; 23 L.R.A. (N.S.) 564.
The bill shows on its face that appellant had actual knowledge by service of process of the suit and when a person stands idly by after process has been served upon him and permits judgment to be entered against him, he cannot have the decree set aside in any collateral proceeding.
Cannon v. Cooper, 39 Miss. 783; Neely v. Craig, 139 So. 835.
It has been universally held in this state and elsewhere that perjury in the procurement of a divorce will not subject same to a collateral attack. There is an exception to this general rule and that is where by fraud the defendant has no notice of the proceeding or by fraud, trick or other device has been prevented from making defense to the suit. No such contention is here made.
Kirby v. Kent, 160 So. 569.
The Chancery Court being a court of general jurisdiction in divorce matters its decrees are not subject to collateral attack.
Amis, Divorce and Separation, sec. 304; Griffith Chancery Practice, sec. 244; Federal Reserve Bank v. Wall, 103 So. 5; Vicksburg Grocery Co. v. Brennan, 20 So. 845; Douglass v. State, 124 S.W. 933, 137 A.S.R. 930; Brotherhood Railroad Trainmen v. Agnew, 155 So. 205; 15 R.C.L. 880; Cotton v. Harlow, 87 So. 152; Walton v. Gregory Funeral Home, 154 So. 717; Sweatman v. Dean, 38 So. 231; A. V. Ry. v. Thomas, 38 So. 770.
Counsel has not cited a single case from this or any other state holding that the affidavit must be verbatim with the language of the statute.
The uninterrupted line of authority in this state has been in divorce cases, as well as other matters, that when a decree has been rendered by a court of general jurisdiction such decree cannot be collaterally attacked unless it appears from the record that same is in fact void. Everything necessary is conclusively presumed to have been done and the recitals are conclusively presumed to be correct.
Appellant has been guilty of laches and is estopped to attack the Quitman County decree.
Dennis v. Harris, 153 N.W. 343; Hester v. Hester, 103 Miss. 26; Cratin v. Cratin, 174 So. 255.
The appellant filed has bill of complaint in the Chancery Court of Bolivar County to obtain a decree of divorce from appellee and the custody of their two children. He made as an exhibit to the bill a certified copy of a divorce proceeding theretofore had in the Chancery Court of Quitman County wherein the appellee had obtained a divorce from him and the award to her of the custody of the children and alimony and attorneys fees. The exhibit affirmatively disclosed that the Chancery Court of Quitman County had jurisdiction of both the subject matter and the parties, it having been alleged, and in effect adjudicated, that their separation took place in said county and that the complainant in said proceeding was a resident citizen thereof. Sufficient grounds were alleged for obtaining the relief therein granted, and the decree recited the taking of oral proof in support thereof.
When the present suit came on for hearing the appellee interposed a demurrer which was sustained by the court below. The appellant having failed to amend or plead further the bill of complaint was dismissed; and thereupon, the appeal here was granted to settle the controlling principles of the case.
The bill of complaint in the case at bar seeks to impeach the decree of the Chancery Court of Quitman County on the ground of alleged fraud perpetrated by the appellee on the jurisdiction of said court in that she falsely alleged that the separation occurred in Quitman County when in truth and in fact, as alleged in the present suit by appellant, it occurred in Webster County.
The decree sought to be impeached was rendered on the 6th day of October, 1936, upon five days personal service of process on the appellant prior to the convening of the term, and this suit was not filed until January 19, 1938. No facts are alleged seeking to excuse such delay, or to charge that the appellant was in any manner mislead as to what course would be taken when the former proceeding came on for trial. Moreover, it appears that the appellee has again married during the period of delay in filing of the appellant's suit. We assume this to be true for the reason that he sues her as Gertrude Bonner (Mrs. Fred) Houston. While we recognize the rule in this State to be that ordinarily a judgment or a decree which has been rendered because of fraud on the jurisdiction of the court may be impeached either by a direct or collateral attack, as held in the cases of Plummer v. Plummer, 37 Miss. 185; Christian v. O'Neal, 46 Miss. 669; Richardson v. Brooks, 52 Miss. 118; McCraney et al. v. New Orleans N.E.R. Co., 128 Miss. 248, 90 So. 881; and Wilson et al. v. McCorkle, 135 Miss. 525, 99 So. 366; nevertheless, it is also true that the person seeking to impeach such judgment or decree may be denied relief therefrom on account of laches. It is the general rule that the acts for which a court of equity may, on account of fraud, set aside or disregard a judgment or decree on collateral attack between the same parties have relation only to fraud which is extrinsic or collateral to the matter tried by the first court, and not to fraud in the matter on which the judgment was rendered. It is said in 15 R.C.L. 762, that: "Relief is granted for extrinsic fraud on the theory that by fraud or deception practiced on the unsuccessful party, he has been prevented from fully exhibiting and trying his case, by reason of which there never has been a real contest before the court of the subject matter of the suit." See, also, United States v. Samuel R. Throckmorton, 98 U.S. 61, 25 L.Ed. 93. It is also stated in 1 Freeman on Judgment (5 Ed.), 718 (in discussing an adjudication by the court of its own jurisdiction), that frequently: "By some application or pleading, facts and circumstances are presented to the court upon the existence of which its right to undertake a determination of the case depends. Without the allegation and proof of such facts it could not rightfully proceed to adjudicate the matter involved. If the circumstances which give rise to the jurisdiction do not exist in a particular case the authority to act does not arise. But the question as to whether or not they do in fact exist is a matter primarily for the court whose powers are invoked, and it has jurisdiction to examine and determine whether the particular application is within or beyond its authority. Its decision in this respect is itself the exercise of a power conferred by the pleading or other act invoking its jurisdiction, and if such decision is incorrect, whether because of lack of evidence or for any other reason, it is nonetheless binding upon the parties unless and until set aside on appeal or by some other proceeding for that purpose. For jurisdiction to decide includes power to decide erroneously and to make the decision binding collaterally." And while our court in its decisions has not gone this far in according absolute verity to the recitals of the necessary jurisdictional facts on the face of the proceedings wherein a judgment is rendered therein on the ground of alleged fraud, it will not hesitate to apply the principle that freedom from laches is generally a prerequisite to the granting of equitable relief from a judgment or decree not void on its face.
Where a defendant has been served with notice for the time required by law of the pendency of the suit and is thereby afforded an opportunity to appear and raise the question of jurisdiction and fails to do so, but acquiesces in the judgment or decree for such length of time as to work prejudice to the rights of third persons who may have acted on the faith of the validity of such judgment or decree, courts of equity will frequently deny him relief therefrom. It is stated in 15 R.C.L. 745, under the subject of laches barring relief against judgments or decrees, that: "It is a time honored and salutary rule that when one is defrauded by the conduct or act of another, he must within a reasonable time after the discovery of the fraud proceed to have the matter corrected and if he does not do so, he is held to have acquiesced therein." The court should act upon equitable principles in the exercise of its discretionary powers, and independent of any absolute limitations by statute on the time within which a judgment or decree may be impeached, the right may be defeated by laches. 1 Freeman on Judgments, Secs. 271, 272; Griffith's Chancery Practice, Secs. 33, 41. And in discussing the requisites of a bill to impeach a decree in equity, it is stated in Griffith's Chancery Practice, Sec. 645, that it should be alleged that "the facts presently presented for relief were not known to the complainant at the time of the decree complained of or if known that he was prevented by fraud or its equivalent from presenting them." In Metcalfe v. Perry, 66 Miss. 68, 5 So. 232, it was said that: "One who seeks, after the period for an appeal or bill of review, to attack and reopen a decree, should not only show want of knowledge of the proceeding complained of, and of all circumstances calculated to put one on inquiry to lead to knowledge, but also should exclude the conclusion of inexcusable ignorance as to the suit," citing Brooks v. Spann, 63 Miss. 198.
The present suit was filed after the period for appeal from the former decree had expired, but within the time allowed for a bill of review, but the statutes of limitations have no application to the doctrine of laches, and we see no reason why the principle above quoted should not be applied to the present suit under the circumstances. On the grounds of public policy, it was held in Hester v. Hester, 103 Miss. 13, 60 So. 6, Ann. Cas. 1915B, 428, that a collateral attack upon a decree of divorce was not maintainable; and to now paraphrase the language of the court in that case, a setting aside of the divorce obtained by the appellee would render her second marriage and her living with her second husband illegal, and a violation of the laws of the land, and would render illegitimate the children, if any, born of the second marriage. It would also be unjust and inequitable to thus stigmatize the little girls born of the first marriage by having it now decreed that the divorce obtained by their mother was illegal, and that her living with Fred Houston is adulterous.
We are of the opinion that no ground for equitable relief is shown by the bill of complaint, when considered in connection with the exhibits attached thereto, and that the action of the court below in sustaining the demurrer was correct.
Affirmed.