Caswell v. Caswell et als.

• Citation: 84 W.Va. 575
• Parties: Caswell v. Caswell et als.
• Decision Date: 30 September 1919
• Court: Supreme Court of West Virginia

84 W.Va. 575

Caswell
v.
Caswell et als.

Supreme Court of Appeals of West Virginia.

Submitted September 17, 1919.
Decided September 30, 1919.

[84 W.Va. 575]

1. Judgment Judgment in Another State Subject to Collateral Attack for Want of Jurisdiction.

A judgment or decree rendered in another state is liable to collateral attack for want of jurisdiction in the court that rendered it. (p. 579).

2. Divorce Foreign Decree of Divorce Entitled to Full Faith and Credit.

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. (p. 579).

3. Same Order of Publication Naming Date Year Before Suit not Void.

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 can not be collaterally attacked for that reason. Such error is self-correcting and does not affect the jurisdiction. (p. 579).

4. Equity Exceptions to Answer Admit Allegations of New Matter.

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. (p. 583).

5. Pleading Exhibits in Support of Pleading A Part Thereof Effect.

Exhibits filed in support of a pleading are considered parts thereof, and, if they contradict the matters alleged, will control, (p. 583).

6. Wills Gift of Annuity Not in Lieu of Dov: er Bequiring Benunciation of Will.

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

[84 W.Va. 576]

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.. (p. 584).

7. Judgment Recital of Jurisdictional Facts in Judgment of Foreign Courts of General Jurisdiction Presumed Correct.

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, (p. 584).

8. Same Court of General Jurisdiction of Another State Where Deposition Does Not Show Jurisdiction, Presumption Other Evidence Did.

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. (p. 582).

9. Divorce Averments of Bill as to Residence Conclusive in Absence of 'Evidence to Contradict.

The allegation in a sworn petition or bill in a divorce proceeding in another state or territory, that plaintiff is and for more than ninety 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. (p. 582).

Certified to Circuit Court, Wood County.

Suit by Mattie R. Caswell against Cora C. Caswell, deceased, and others, to establish dower and an accounting. Plaintiff's motions to strike out certain parts of the answers overruled, and the rulings certified.

Reversed in part. Affirmed in part. Certified back to Circuit Court.

W. M. Straus and George W. Johnson, for plaintiff. McCluer & McCluer, and Smith D. Turner, for defendants.

Williams, Judge:

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

[84 W.Va. 577]

bond. Mattie E. 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 $750.00 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...