Summary
In Wilkerson v. Wilkerson, 230 Ala. 567, 161 So. 820, the action was by decedent's first wife to set aside a divorce decree obtained by her husband more than twenty years before, and it was held that the rule of prescription (20-year period) was not avoided because complainant had been insane.
Summary of this case from Fuller v. KnightOpinion
6 Div. 732.
May 30, 1935. Rehearing Denied June 20, 1935.
Appeal from Circuit Court, Jefferson County; J. Russell McElroy, Judge.
Earl McBee and Walter H. Anderson, both of Birmingham, for appellant.
Any attack upon a judgment or decree by a bill in the nature of a bill of review is a direct attack. Johnson v. Johnson, 182 Ala. 376, 62 So. 706; Friedman v. Shamblin, 117 Ala. 454, 23 So. 821. Fraudulent invocation of jurisdiction by a false affidavit upon which constructive service is had is fraud sufficient to attack a divorce decree based upon such service where respondent is prevented from having notice by reason of such fraud. Nichols v. Dill, 222 Ala. 455, 132 So. 900; Graham v. Graham, 54 Wn. 70, 102 P. 891, L.R.A. 1917B, 447, 18 Ann. Cas. 999. Fraudulently keeping respondent in ignorance of the suit is sufficient to support such an attack. Hogan v. Scott, 186 Ala. 310, 65 So. 209; Newcomb v. Newcomb, 13 Bush (Ky.) 544, 26 Am. Rep. 222. Failure to appoint guardian ad litem to represent insane respondent is ground to set aside the decree. Cunningham v. Wood, 224 Ala. 288, 140 So. 351. False averment of jurisdictional facts in the pleadings constitutes fraud requiring the setting aside of decree rendered thereon. Jones v. Henderson, 228 Ala. 273, 153 So. 214; McGathey v. Thompson, 224 Ala. 163, 138 So. 841; Keenum v. Dodson, 212 Ala. 146, 102 So. 230; Lester v. Stroud, 212 Ala. 635, 103 So. 692; 21 C. J. 778. Where complainant has been continuously insane since the rendition of the decree, even though rendered over thirty years ago, she is not barred from impeaching such decree. Code 1923, § 6608; Hatton v. Moseley, 229 Ala. 240, 156 So. 546; Cunningham v. Wood, supra; Nichols v. Dill, supra; Davis v. Davis, 211 Ala. 317, 100 So. 345; Heflin v. Ashford, 85 Ala. 125, 3 So. 760; Manegold v. Beavan, 189 Ala. 241, 66 So. 448; Gordon v. Ross, 63 Ala. 363; Bradley v. Singleterry, 178 Ala. 106, 59 So. 58; Edmondson v. Jones, 204 Ala. 133, 85 So. 799; 4 Pomeroy's Eq. Jur. (4th Ed.) § 145; 10 R. C. L. § 150; 21 C. J. 241; Walling v. Thomas, 133 Ala. 426, 31 So. 982; Van Buskirk v. Van Buskirk, 148 Ill. 9, 35 N.E. 383; Holman v. Randolph Nat. Bank, 98 Vt. 66, 126 A. 500: Kidder v. Houston (N.J. Ch.) 47 A. 336; Highberger v. Stiffler, 21 Md. 338, 83 Am. Dec. 593; Williams v. Williams (C.C.A.) 61 F.(2d) 257; Garcia v. Zamora (Tex.Civ.App.) 2 S.W.(2d) 907; Taylor v. Colley, 138 Ga. 41, 74 S.E. 694; Jefferson v. Rust, 149 Iowa, 594, 128 N.W. 954; People ex rel. v. Johnson, 161 App. Div. 625, 146 N.Y. S. 977; Lundy v. Seymour, 55 N.J. Eq. 1, 35 A. 893; Trowbridge v. Stone, 42 W. Va. 454, 26 S.E. 363; Heyl v. Goelz, 97 Wis. 327, 72 N.W. 626; Downham v. Holloway, 158 Ind. 626, 64 N.E. 82, 92 Am. St. Rep. 330. A divorce decree procured by fraud which is of such nature as to conceal itself, or is concealed, may be set aside by the bill filed upon discovery of the fraud regardless of lapse of time. Duncan v. Williams, 89 Ala. 341, 7 So. 416; Mullen v. Walton, 142 Ala. 166, 39 So. 97; Albritton v. Giddings, 140 Ga. 169, 78 S.E. 723; 2 Perry on Trusts (7th Ed.) 1465; Miles v. Wheeler, 43 Ill. 123; Bailey v. Glover, 21 Wall. (88 U.S.) 342, 22 L.Ed. 636; Leathers v. Stewart, 108 Me. 96, 79 A. 16, Ann. Cas. 1913B, 366; Brown v. Grove, 116 Ind. 84, 18 N.E. 387, 9 Am. St. Rep. 823; Caswell v. Caswell, 120 Ill. 377, 11 N.E. 342. Code, § 8966, does not apply until the statutory period has expired, and section 6608 cannot run until termination of appellant's insanity. Heflin v. Ashford, supra; Wood v. Master Schools, 221 Ala. 645, 130 So. 178; Peters Min. Land Co. v. Hooper, 208 Ala. 324, 94 So. 606; Tillison v. Ewing, 91 Ala. 467, 8 So. 404. Jurisdiction by constructive service can only be had by strict compliance with the law; failure to aver the defendant's street address is unknown is a fatal defect in the affidavit for publication. Sayre v. Elyton Land Co., 73 Ala. 85; Parker v. Cowan, 214 Ala. 69, 106 So. 507. Where bill for divorce does not properly aver a ground therefor, a decree thereon is void on its face. Tillery v. Tillery, 217 Ala. 142, 115 So. 27; Martin v. Martin, 173 Ala. 106, 55 So. 632; Code 1923, § 7407; Stephenson v. Stephenson, 213 Ala. 382, 105 So. 183; 19 C. J. 112; Powell v. Powell, 58 Mich. 299, 25 N.W. 199; Stocking v. Stocking, 76 Minn. 292, 79 N.W. 172, 668. No lapse of time will bar attack on a decree void on the face of the record. Anthony v. Anthony, 221 Ala. 221, 128 So. 440.
W. B. Harrison and Marvin Woodall, both of Birmingham, for appellee.
Appellant's bill is barred by the statute of limitations; no disability could extend the period of limitation for more than 20 years. Code, § 6608, is limited by section 8960. McLeod v. Adams, 218 Ala. 424, 118 So. 636; Courson v. Tollison, 226 Ala. 530, 147 So. 635; McCartney v. Bone, 40 Ala. 533; Riggs v. Fuller, 54 Ala. 141; Taylor v. Forsey, 56 Ala. 426; Greenlees v. Greenlees, 62 Ala. 330; Woodstock v. Roberts, 87 Ala. 436, 6 So. 349; Oxford v. Estes, 229 Ala. 606, 158 So. 534; Veitch v. Woodward Iron Co., 200 Ala. 358, 76 So. 124; Faris v. Moore, 256 Mo. 123, 165 S.W. 311; Boyd v. Weber, 193 Pa. 651, 44 A. 1078; Trusts, c. Co. v. Ontario Trust Co., 31 Ont. 504; 37 C. J. 1024, note 68; Nichols v. Dill, 222 Ala. 455, 132 So. 900. In absence of statutory exception, a statute of limitations runs against an insane person. Mewburn v. Bass, 82 Ala. 622, 2 So. 520; Barclay v. Smith, 66 Ala. 230; 37 C. J. 1024; Ann. Cas. 1912C, 1011; Vance v. Vance, 108 U.S. 514, 2 S.Ct. 854, 27 L.Ed. 808; Collier v. Smaltz, 149 Iowa, 230, 128 N.W. 396, Ann. Cas. 1912C, 1007; Code 1923, §§ 6522, 8955; Street v. Watts, 202 Ala. 622, 81 So. 564; Matthews v. McDade, 72 Ala. 377. Irrespective of statute, the suit is barred by prescription applied by courts of equity Thomas v. Brockenbrough, 10 Wheat. 146, 6 L.Ed. 287; Nimmo v. Stewart, 21 Ala. 682; Harrison v. Heflin, 54 Ala. 552; Molton v. Henderson, 62 Ala. 426; Kelley v. Woodley, 228 Ala. 401, 153 So. 745; McArthur v. Carrie, 32 Ala. 75, 70 Am. Dec. 529; Garrett v. Garrett, 69 Ala. 429; Long v. Parmer, 81 Ala. 384, 1 So. 900; Bozeman v. Bozeman, 82 Ala. 389, 2 So. 732; Wilson v. Holt, 83 Ala. 528, 3 So. 321, 3 Am. St. Rep. 768; Ashurst v. Peck, 101 Ala. 499, 14 So. 541; Rives v. Morris, 108 Ala. 527, 18 So. 743; Alabama C. C. Co. v. Gulf C. C. Co., 171 Ala. 544, 54 So. 685; Gayle v. Pennington, 185 Ala. 53, 64, So. 572; Patterson v. Weaver, 216 Ala. 686, 114 So. 301; Salvo v. Coursey, 220 Ala. 300, 124 So. 874. The attack upon this divorce decree for fraud is a collateral attack, and the facts must appear from the records alone. In support of the records, any presumption consistent or inconsistent therewith will be indulged. Long v. Parmer, supra; Hester v. Hester, 103 Miss. 13, 60 So. 6, Ann. Cas. 1915B, 428; Williams v. Overcast, 229 Ala. 119, 155 So. 543; Johnson v. Johnson, 182 Ala. 376, 62 So. 706; Rosebrook v. Martin, 200 Ala. 592, 76 So. 950; Miller v. Thompson, 209 Ala. 469, 96 So. 481; Berry v. Manning, 209 Ala. 587, 96 So. 762; Ex parte Wilkinson, 220 Ala. 529, 126 So. 102; Penton v. Brown-Crummer Inv. Co., 222 Ala. 155, 131 So. 14; Warren v. Southall, 224 Ala. 653, 141 So. 632; Montgomery v. Hammond, 228 Ala. 449, 153 So. 654; McAllum v. Spinks. 129 Miss. 237, 91 So. 694; King v. Kent, 29 Ala. 542; Pollard v. Hanrick, 74 Ala. 334; Whitlow v. Echols, 78 Ala. 206; Van Houtan v. Black, 191 Ala. 168, 67 So. 1008; Ex parte Payne Lbr. Co., 205 Ala. 259, 87 So. 876; Thompson v. Thompson, 91 Ala. 591, 8 So. 419, 11 L.R.A. 443; Martin v. Martin, 173 Ala. 106, 55 So. 632; Cobbs v. Norville, 227 Ala. 621, 151 So. 576; Falkner v. Christian, 51 Ala. 495; Baker v. Prewitt, 64 Ala. 551; Galloway C. Co. v. Warrior Black Creek Coal Co., 204 Ala. 107, 85 So. 440. It is not a fraudulent invocation of jurisdiction for plaintiff's initial pleading to contain a false averment of fact. Adler v. Van Kirk Co., 114 Ala. 551, 21 So. 490, 62 Am. St. Rep. 133; Hardeman v. Donaghey, 170 Ala. 362, 54 So. 172; Quick v. McDonald, 214 Ala. 587, 108 So. 529. Objection to venue should be made before decree pro confesso, and could not invalidate the decree here involved. White v. White, 206 Ala. 231, 89 So. 579; Wakefield v. Wakefield, 217 Ala. 517, 116 So. 685; Hammons v. Hammons, 228 Ala. 264, 153 So. 210; White v. Simpson, 124 Ala. 238, 27 So. 297; 34 C. J. 535. Whether complainant abandoned her husband was the issue in the original suit, and cannot be relitigated here. Bedwell v. Dean, 222 Ala. 276, 132 So. 20; Ashford v. Patton, 70 Ala. 479; Rittenberry v. Wharton, 176 Ala. 390, 58 So. 293; DeSoto Co. v. Hill, 188 Ala. 667, 65 So. 988. The fact that the husband used his initials only, without using his given name, in bringing the suit, did not indicate a fraudulent purpose. Veasey v. Brigman, 93 Ala. 548, 9 So. 728, 13 L.R.A. 541; Hall v. State, 130 Ala. 45, 30 So. 422; Harrison v. Harrison, 19 Ala. 499; Comer v. Jackson, 50 Ala. 384. A divorce decree will not be set aside because of perjury committed on the trial. Nation v. Nation, 206 Ala. 397, 90 So. 494. Nor will such decree be invalidated by proving defendant was insane when it was rendered. 3 Freeman on Judgments, §§ 1207, 1265; 35 L.R.A. (N.S.) 1093, note; 34 A.L.R. 221, note; Wilkinson v. Lehman-Durr Co., 150 Ala. 464, 43 So. 857, 124 Am. St. Rep. 75; White v. Farley, 81 Ala. 563, 8 So. 215. A decree against an insane person for whom no guardian ad litem was appointed is not void. Levystein v. O'Brien, 106 Ala. 352, 17 So. 550, 30 L.R.A. 707, 54 Am. St. Rep. 56; Friedman v. Shamblin, 117 Ala. 454, 23 So. 821. In divorce proceedings, service by publication pursuant to statute is equally as obligatory as personal service. Betancourt v. Eberlin, 71 Ala. 461; Weaver v. Brown, 87 Ala. 533, 6 So. 354. Service by publication in the proceeding under review was effected in the manner prescribed. The decree pro confesso having been rendered by the register, no certificate of publication by him was necessary, since he had personal knowledge of the notice given. Chancery Rule 22, 1 Code 1896, p. 1206; Code 1896, § 686; Code 1923, §§ 9431, 9446, 9447; Phillips v. Ashworth, 220 Ala. 237, 124 So. 519. But, if the record were entirely silent, it would be presumed the register did his duty. Roman v. Morgan, 162 Ala. 133, 50 So. 273; McMahan v. Browne, 185 Ala. 272, 64 So. 553; Wilson v. Holt, 83 Ala. 528, 3 So. 321, 3 Am. St. Rep. 768; Kidd v. Cruse, 200 Ala. 293, 76 So. 59; Tharp v. Johnson, 219 Ala. 537, 122 So. 668; Foshee v. Kay, 197 Ala. 157, 72 So. 391. It was not necessary in the bill for divorce to follow the exact terms of the statute; the averment as to abandonment was sufficient. Martin v. Martin, supra; McCord v. Lanier, 207 Ala. 663, 93 So. 546; Stephenson v. Stephenson, 213 Ala. 382, 105 So. 183; 4 Ency. Evi. 765.
This is a suit in equity whose equitable right is dependent upon the sufficiency of the bill against demurrer as an attack upon a decree of the chancery court of Barbour county rendered on December 16, 1903, in which that court granted a divorce to A. L. J. Wilkerson (said to be Abner J. Wilkerson) from his wife there named as Emma Wilkerson. After the divorce, and on January 18, 1904, Wilkerson married Lula Lee Woodall (or Wood) by authority of license that day issued, and lived with her as such wife until he died in 1932.
He was married to Emma or Mary Emma, as the bill alleges, in September, 1896, and in October, 1903, filed a bill in chancery in Barbour county; that the jurisdiction of that court was fraudulently invoked, in that it alleged that he was a resident of that county, when he was not such a resident, but resided in Jefferson county; and in that it alleged that Emma voluntarily abandoned him in April, 1897, when in fact she never abandoned him at all, but in 1897 they were living together as man and wife, and a child was born to them in 1901; that in 1902 he joined in proceedings in Atlanta, Ga., to have her committed to the insane hospital in Milledgeville, Ga., and that she has been there, insane, ever since then, and was so at the time the bill for divorce was filed against her; that there was fraud also in alleging in the bill that she resided in Atlanta, Ga., whereas she was in the insane hospital in Milledgeville, which was known to him; and in alleging that she resided in Atlanta, when she was a resident of Alabama; that he filed the suit in the name of A. L. J. Wilkerson so as to conceal his identity as complainant; that the decree was rendered on fraudulent and perjurious testimony; and upon publication of notice, and without further notice to her; that she was not represented by guardian ad litem nor otherwise; that her insanity was fraudulently concealed from the court; that she still is insane, and knows nothing about the proceeding.
The bill is filed in the name of Mary Emma Wilkerson by Louise Suttles, as next friend, who is a daughter of Mary Emma and Abner.
It also alleges that the divorce proceedings are void on their face, because they do not show that a copy of the order of publication was mailed to respondent as required by law; because the affidavit does not state her post office address was unknown, but only that it was Atlanta, Ga., which was a large city and an insufficient address was given; that there was no legal service on defendant; and fails to allege that the voluntary abandonment continued two years next preceding the filing of the bill.
The bill then alleges that he left a last will and testament which was probated in Jefferson county in January, 1933, by which he made a bequest of $25 to Louise Suttles, the next friend of complainant, and their daughter, and that Lula Lee Wilkerson was the sole beneficiary of the residue, of the value of about $20,000, and that she was the named beneficiary in certain life insurance policies. The prayer of the bill was to require Lula Lee to execute bond as executrix, of which the will relieved her, and that the decree of divorce be adjudged null and void, and that complainant have her dower and distributive share of the estate awarded to her.
It appears therefore that the question of importance depends upon the right to have the decree of divorce annulled for (a) fraud, or for (b) invalidity apparent on its face. The bill was filed in this suit January 26, 1934, and the decree of divorce was entered December 18, 1903, and he and Lula Lee were married January 18, 1904, and he died December 5, 1932. So that the bill was filed thirty years and one month after the decree was entered, and thirty years after he married Lula Lee, having lived with her as his wife twenty-nine years before he died, and it was not filed until after his death.
The attack by demurrer on the bill, among other grounds, is that it shows that the right to vacate the divorce decree for fraud is barred by the rule of prescription of twenty years, and that it does not on its face show invalidity.
Since an early period in this state, prescription has been in force, created by the chancery court as a rule of repose, and it is thus stated in McArthur v. Carrie, 32 Ala. 75, 88, 89, 70 Am. Dec. 529, by Stone, J.: "In this, as in most of the States of this Union, there is a growing disposition to fix a period, beyond which human transactions shall not be open to judicial investigation, even in cases for which no statutory limitation has been provided. * * * By common consent, twenty years have been agreed on, as a time at the end of which many of the most solemn transactions will be presumed to be settled and closed." And in Garrett v. Garrett, 69 Ala. 429, it is said: "So sweeping is the principle in its scope and operation, that the presumption raised by it is not arrested or rebutted by the proof of any disability, such as infancy or coverture, on the part of the distributees by whom a trustee or administrator has been cited to settlement." In Matthews v. McDade, 72 Ala. 377, 388: "Twenty years is a period of time beyond which the courts are indisposed to permit past human transactions to be disturbed by judicial investigation." McArthur v. Carrie, supra; Garrett v. Garrett, supra; Baker v. Prewitt, 64 Ala. 551; Street v. Watts, 202 Ala. 622, 81 So. 564; Long v. Parmer, 81 Ala. 384, 1 So. 900; Bozeman v. Bozeman, 82 Ala. 389, 2 So. 732; Wilson v. Holt, 83 Ala. 528, 3 So. 321, 3 Am. St. Rep. 768; Alabama C. C. Co. v. Gulf C. C. Co., 171 Ala. 544, 54 So. 685; Scott v. Scott, 202 Ala. 244, 80 So. 82. Again it is said in Snodgrass v. Snodgrass, 176 Ala. 276, 280, 58 So. 201, 202, that "the consensus of opinion in the present day is that such presumption is conclusive," and quoting from an earlier case, "the presumption rests not only on the want of diligence in asserting rights, but on the higher ground that it is necessary to suppress frauds, to avoid long dormant claims, which, it has been said, have often more of cruelty than of justice in them, that it conduces to peace of society and the happiness of families, 'and relieves courts from the necessity of adjudicating rights so obscured by the lapse of time and the accidents of life that the attainment of truth and justice is next to impossible.' " Harrison v. Heflin, 54 Ala. 552, 563, 564; Greenlees v. Greenlees, 62 Ala. 330; Semple v. Glenn, 91 Ala. 245, 260, 261, 6 So. 46, 9 So. 265, 24 Am. St. Rep. 894; Roach v. Cox, 160 Ala. 425, 49 So. 578, 135 Am. St. Rep. 107.
The rule now creates a conclusive bar, Roach v. Cox, supra; Oxford v. Estes, 229 Ala. 606, 158 So. 534, and is not affected by the circumstances of the situation, that is to say, whether truth and justice are thereby obscured, or by the death of parties or destruction of testimony, and conduct based upon the apparent situation, or the age, state of mind, or status of responsibility. These are circumstances which are considered in respect to laches but not prescription. Oxford v. Estes, supra; Courson v. Tollison, 226 Ala. 530, 147 So. 635; Ashurst v. Peck, 101 Ala. 499, 14 So. 541.
But such circumstances only give a reason for the adoption of the twenty-year period of prescription, and are not necessary to exist that its operation shall be complete. McCartney v. Bone, 40 Ala. 533; Patterson v. Weaver, 216 Ala. 686, 114 So. 301; Ashurst v. Peck, 101 Ala. 499, page 509, 14 So. 541; 21 Corpus Juris 212. It is not dependent upon statute, though it is there recognized. Section 8960, Code.
This being in the nature of a bill of review, so far as it charges fraud in procuring the decree, the ordinary statute of limitations is three years, by analogy to section 6608, Code, as limited by the one year statute, section 8966, Code. Nichols v. Dill, 222 Ala. 455, 132 So. 900; Manegold v. Beavan, 189 Ala. 241, 66 So. 448; Gordon v. Ross, 63 Ala. 363.
But no disability shall extend the period beyond twenty years. Oxford v. Estes, supra; Greenlees v. Greenlees, supra, 62 Ala. 330, page 333; Harrison v. Heflin, supra, 54 Ala. 552,
But it is urged that section 8966, Code, does away with the doctrine of prescription entirely as against insane persons who remain throughout that period. That section has continued in the Code since we have had one. Throughout all the years of this state's history, it has not been suggested in the opinions of this court, so far as we know, that the doctrine was thereby destroyed as to those who remained insane throughout that period. Prescription is not statutory, but a salutary principle of equitable origin, whose purpose has not been questioned by judicial construction, nor changed by statute. And we have consistently adhered to the idea that it operates alike on all, regardless of the status or condition of the parties. It is broader than the statute of limitations. Patterson v. Weaver, 216 Ala. 686, 114 So. 301, and not affected by it.
So that on this question, it is immaterial that complainant has been all the time insane, and not subject to the statute of limitations, nor to the claim of laches; nor that Lula Lee, who was the apparent wife of decedent for twenty-nine years, may have known that the decree was fraudulent.
So far as the bill seeks to vacate the decree for invalidity, apparent on the proceedings, arising from an absence of jurisdictional averments in the bill, and absence of jurisdiction of the person, the right is not defeated by the rule of prescription. Grier v. Campbell, 21 Ala. 327; Pettus v. McClannahan, 52 Ala. 55, 58; Buchanan v. Thomason, 70 Ala. 401; Baker v. Barclift, 76 Ala. 414; Sweeney v. Tritsch, 151 Ala. 242, 44 So. 184; Martin v. Martin, 173 Ala. 106, 107, 55 So. 632; Anthony v. Anthony, 221 Ala. 221, 128 So. 440. But to that extent, the bill is a collateral attack, and the right is not dependent upon error nor irregularity, but an absence of jurisdiction apparent upon the proceedings. Smith v. Gibson, 191 Ala. 305, 68 So. 143; Martin v. Martin, supra; Anthony v. Anthony, supra.
Since a judgment against an insane person is not void, when insanity does not affirmatively appear, it cannot for that reason alone be collaterally attacked. 32 Corpus Juris 791. So a want of representation by guardian or guardian ad litem does not render the decree void on such attack, when the record does not on its face show the insanity. 32 Corpus Juris 789. But the judgment is subject to vacation on that ground as for fraud, Cunningham v. Wood, 224 Ala. 288, 140 So. 351, or collusion, Ex parte Edwards, 183 Ala. 659, 62 So. 775.
The proceedings here under consideration do not show the insanity of this complainant, and therefore the decree is not void on that ground alone. Any infirmity thereby occasioned is subject to the bar of prescription.
But not so as to such matters which must affirmatively appear to show jurisdiction of the cause or person. Anthony v. Anthony, supra; Tillery v. Tillery, 217 Ala. 142, 115 So. 27; Parker v. Cowan, 214 Ala. 69, 106 So. 507.
But in construing proceedings in divorce cases, though the court is of statutory and limited jurisdiction, a construction will be given that will sustain their validity, if it is reasonable, and all reasonable intendments and presumptions indulged in their favor. Authorities last supra; Smith v. Gibson, supra; King v. Kent, 29 Ala. 542; Martin v. Martin, supra.
The third cause for a divorce stated in section 7407, Code, is "for voluntary abandonment from bed and board for two years next preceding the filing of the bill." The language of the statute used in a bill is sufficient even against demurrer. Stephenson v. Stephenson, 213 Ala. 382, 105 So. 183.
The language of the bill we have under consideration is that the complainant and respondent were married and "lived together as man and wife until sometime in the month of April, 1897, when said Emma Wilkerson voluntarily abandoned the bed and board of your orator and without fault on his part, and that the said Emma Wilkerson resides in the State of Georgia, in the city of Atlanta." The defect of averment is that it does not allege that the separation was continuous. It shows that it occurred more than two years next preceding the filing of the bill, and that it existed at the time of its filing, but omits to aver that it continued throughout the intervening period — the proof was sufficient in this respect. The bill was subject to demurrer on that ground, for on demurrer to the bill all presumptions and intendments are taken against the complainant. But we have shown that on collateral attack all reasonable intendments and presumptions are taken in its favor. Although the bill does not affirmatively allege that the abandonment continued for the two years next preceding the filing of the bill, such is a reasonable intendment and presumption on collateral attack, sufficient to invoke the jurisdiction of the court in that respect. Smith v. Gibson, supra.
The bill does allege that complainant has been a bona fide resident of Alabama for three years next before the filing of it, section 7414, Code; Smith v. Gibson, supra, and that complainant was at the time of its filing a resident citizen of the division and district (the bill was filed in the Southeastern division and Fourteenth district), section 7415, Code, and, since defendant was alleged to be a nonresident, it also stated that complainant was a bona fide resident of Alabama for more than one year next before filing the bill. Section 7416, Code. We think that it sufficiently alleged matter necessary to invoke the jurisdiction of the court over the subject-matter.
It is also insisted that the notice was not a sufficient compliance with the statute; that a copy of the order of publication was not mailed to defendant. This was required by rule 22 of Chancery Practice, Code of 1896, pp. 1206, 1207, when such residence is shown in the bill or affidavit.
A decree of divorce against a nonresident upon service which was perfected by publication in the manner prescribed by statute is equally as obligatory upon defendant as if he had been personally served with process. Harrison v. Harrison, 19 Ala. 499; Sayre v. Elyton Land Co., 73 Ala. 85. Proper statutory notice shown by the record is jurisdictional. Phillips v. Ashworth, 220, 237, 124 So. 519.
And the statutory provisions are mandatory and must be strictly construed to confer jurisdiction. Sayre v. Elyton Land Co., supra; McCammon v. McCammon, 206 Ala. 165, 89 So. 455; Guy v. Pridgen, 22 Ala. App. 595, 118 So. 229; 19 Corpus Juris 104, note 27; 15 R. C. L. 636; Butler v. Butler, 11 Ala. 668; Beavers v. Davis, 19 Ala. 82; Hanson v. Patterson, 17 Ala. 738; Cullum v. Branch Bank, 23 Ala. 797; Clark v. Gilmer, 28 Ala. 265; Curry v. Falkner, 51 Ala. 564; Holly v. Bass, 63 Ala. 387; Paulling v. Creagh, 63 Ala. 398; Scott v. Shelley, 219 Ala. 122, 121 So. 396.
This question is controlled by the Code of 1896, including rule 22, Chancery Practice. Sections 9431 and 9445 et seq., Code 1923, have been enacted since the chancery proceeding now under consideration. That rule required the register to post at the courthouse door a copy of the order of publication "and shall send by mail another copy thereof to the defendant, where his residence is shown by the bill or affidavit, as aforesaid."
The register certified "that a copy of said order was forwarded by mail on the __________ day of __________, 189_, addressed to __________, and one other copy of said order was posted at the courthouse door of said county for four consecutive weeks." The register made and entered the decree pro confesso. When he does, the certificate of publication need not be made by him. Rule 29; Phillips v. Ashworth, supra. The decree pro confesso recited that the register made an order of publication on October 8, 1903, requiring Emma Wilkerson to appear and defend, etc., by November 8, 1903; that it was "published in the Eufaule Times and News for four consecutive weeks immediately succeeding the date thereof, and that notice of the same has been posted at the courthouse door and three other public places in said county, and a copy send [sent] to the supposed postoffice of said defendant." It was dated December 14, 1903.
Rule 22 did not require the post office of defendant to be stated with accuracy, nor at all, but required a copy of the order of publication to be sent to her where her residence is shown by the bill or affidavit. They both showed it to be Atlanta, Ga. We think this situation showed a compliance with statutory requirements as to notice. The affidavit for publication sufficiently complied with the statute. Anthony v. Anthony, supra.
It is not necessary to express our views on other questions. For the reasons we have indicated, we think the decree sustaining the demurrer to the bill was without error, and it is affirmed.
Affirmed.
ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.