Caswell v. Caswell
| Decision Date | 30 September 1919 |
| Citation | 100 S.E. 482,84 W.Va. 575 |
| Parties | CASWELL v. CASWELL ET AL. |
| Court | West Virginia Supreme Court |
Submitted September 17, 1919.
Syllabus by the Court.
A judgment or decree rendered in another state is liable to collateral attack for want of jurisdiction in the court that rendered it.
In the absence of any showing of fraud upon the court, or lack of jurisdiction, a decree of divorce rendered by a court of competent jurisdiction in another state or territory of the United States, upon an order of publication duly executed pursuant to the laws of such state or territory, is entitled to the same faith and credit in the courts of this state as in the state or territory wherein rendered.
An order of publication, otherwise regular, defective only in that it names a date in a year prior to the bringing of the suit, instead of the year in which the suit was brought, is not void, and a decree based thereon cannot be collaterally attacked for that reason. Such error is self-correcting, and does not affect the jurisdiction.
Exceptions to an answer which sets up affirmative matter in bar, being analogous to a demurrer to a bill or plea, admit the truth of the allegations excepted to.
Exhibits filed in support of a pleading are considered parts thereof and, if they contradict the matters alleged, will control.
Where a husband settles an annuity upon his wife, payable during her life, and thereafter dies testate, devising all his property to another, and provides in his will that his wife shall have no other part of his estate, except the annuity previously settled on her, such provision in the will is not a gift in lieu of dower, and she is not required to renounce the will in order to be entitled to claim dower.
When it does not appear from a certified copy of the record of proceedings in a court of general jurisdiction of another state or territory that such court was without jurisdiction a finding by it of jurisdictional facts recited in its decree is presumably correct.
Where a court of another state or territory may hear and receive evidence ore tenus as well as by depositions, a certified copy of the record, in a proceeding showing only one deposition to have been filed, which fails to prove all the jurisdictional facts, it will not be presumed that such deposition is all the evidence taken or heard, when the court in its decree recites a finding of all jurisdictional facts.
The allegation, in a sworn petition or bill in a divorce proceeding in another state or territory, that plaintiff is and for more than 90 days prior thereto has been, a resident of such state or territory, such residence being essential to jurisdiction, proves the fact averred, in the absence of anything in the record to contradict it.
Certified to Circuit Court, Wood County.
Suit by Mattie R. Caswell against Cora C. Caswell, executrix of W. S Caswell, deceased, and others, to establish dower and for an accounting. Plaintiff's motions to strike out certain parts of the answers overruled, and the rulings certified. Reversed in part and affirmed in part, and decision ordered certified back to circuit court.
W. M. Straus and Geo. W. Johnson, both of Parkersburg, for plaintiff.
McCluer & McCluer and Smith D. Turner, all of Parkersburg, for defendants.
W. S. Caswell departed this life testate in July, 1916, devising his property, real and personal, to Cora C. Caswell, his second wife, and appointed her his executrix without bond. Mattie R. Caswell, claiming to be the lawful wife of said W. S. Caswell at the time of his death, brought this suit praying to have her dower assigned in the real estate of which said W. S. Caswell was seized during coverture, and also for her distributive share in his personal estate. Plaintiff alleges that by writing dated 26th of October, 1891, said W. S. Caswell settled upon her the sum of $750 per year, payable at the rate of $62.50 each month during her life; that the personal property which passed into the hands of the aforesaid executrix is liable to the payment of the same, and that said executrix is in possession of, using, and converting the same to her own uses to such an extent that there will be none of it left to pay her the aforesaid annuity. She prays for an accounting of the personal fund by said executrix, including the rents, issues, and profits derived from the real estate since her said husband's death, and for an assignment of dower in the real estate.
W. S. Caswell, after his marriage to plaintiff, conveyed to third parties certain portions of his real estate, and his grantees, and those claiming under them, are made parties to the bill. Cora C. Caswell and the other defendants demurred to the bill, which demurrers were overruled. They then filed their answers, averring that W. S. Caswell was married to plaintiff May 2, 1877; that he died June 15, 1916, testate, and by his will dated March 31, 1909, probated in Wood county, July 3, 1916, devised and bequeathed all his property, both real and personal, to his wife, Cora C. Caswell, except the annuity of $750, to be paid in monthly installments of $62.50 each to the plaintiff during her lifetime, but that she should have no other share in his estate; that Cora C. Caswell was appointed his executrix; that the will was duly probated in Wood county, and the probate order of the county court of said county is now in full force and effect; that said executrix has paid to plaintiff, since the death of the testator, the aforesaid monthly installments, and the same have been accepted by the plaintiff; that whether or not Mattie R. Caswell was the wife and is now the widow of said testator, she is, nevertheles s, barred of any other interest in his estate.
The answer further avers that a suit was instituted in the district court of Logan county, Okl., then a territory, but now the state of Oklahoma, in which W. S. Caswell was the plaintiff and Mattie R. Caswell was the defendant, and that on the 29th of July, 1895, a decree was rendered therein granting said W. S. Caswell an absolute divorce from Mattie R. Caswell; that said decree became absolute on the 29th of January, 1896, and has not been reversed, and is now in full force and effect. The answer exhibits a transcript of the record of the proceedings and decree rendered in said Oklahoma suit, and further avers that in July, 1893, this plaintiff left her then husband, the said W. S. Caswell, without such cause as would entitle her to a divorce either from the bonds of matrimony or from bed and board, and, without just cause and of her own free will, lived separate and apart from him, and was so living at the time of his death; wherefore it is alleged that, under the provisions of section 7 of chapter 65 (sec. 3655) Code, she is barred of dower, and of all right to claim a distributive share in his personal estate. It also avers that W. S. Caswell was not seized, at any time during the existence of his marriage to Mattie R. Caswell, of an estate of inheritance in any of the parcels of real estate mentioned and described in the bill, except a lot on Avery street conveyed to him by Mrs. C. L. Caswell by deed dated September 3, 1888. The answer admits that W. S. Caswell, previous to obtaining the divorce in the district court of Logan county, Okl., settled upon the plaintiff an annuity of $750, payable at the rate of $62.50 per month during her life, and secured the same by a deed of trust on a lot situated in Parkersburg at the corner of Market and Eleventh streets, which property it avers rents for at least $94 per month, and that said annuity constitutes the first lien upon said property. The executrix also admits that, under the terms of the will, she has received the personal property devised to her by the testator, but denies that she has made no provision for the payment of the monthly installments, and denies that she is converting and making such use of the personal property as to deplete it to the injury of plaintiff, and denies that plaintiff is entitled to any relief.
The other defendants also answered averring substantially the same matters set up in the answer of the executrix.
Plaintiff filed written exceptions to, and moved to strike out certain portions of, the answers, for the alleged reason that they constituted no defense. These motions were overruled, and the court on its own motion has certified its rulings thereon to this court.
The first exception and motion to strike relates to that part of the answers setting up, as a bar to plaintiff's claim, the decree of divorce and proceedings in the Oklahoma court, evidenced by a certified copy of the record of said proceedings made a part of the answer as Exhibit "No. 2A." The next exception was taken to that part of the answer setting up the annuity as a provision made for plaintiff in testator's will in lieu of her dower, and therefore a bar to the present suit.
As grounds for the first exception, it is claimed that the certified copy of the record from the district court of Logan county, Okl., shows want of jurisdiction; that this plaintiff was not a resident of Oklahoma, was proceeded against by order of publication, and made no appearance to the suit; and, second, because it appears from the order of publication therein that the defendant was summoned to appear at an impossible date, the date being prior to the order of publication; and, third, because it does not appear that the defendant received any notice of the pendency of the suit.
This is a collateral attack upon the decree of the Oklahoma court but the judgment or decree of a foreign court may be assailed collaterally for want of jurisdiction, as in such case the judgment is void, not simply voidable. If the certified record...
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