Cratin v. Cbatin
| Decision Date | 22 March 1937 |
| Docket Number | 32539 |
| Citation | 173 So. 415,178 Miss. 881 |
| Court | Mississippi Supreme Court |
| Parties | Cratin v. Cbatin. |
(Division A.)
1 DIVORCE.
Omission of post office address of wife from bill of complaint and affidavit attached thereto, in husband's divorce suit alleging that wife was resident of another state but that husband did not know her whereabouts, held to render publication made thereon ineffective and to entitle wife to vacation of decree entered after service by publication (Ann Code 1892, sec. 3421).
2 DIVORCE.
Allegation of wife's petition to set aside divorce decree granted husband for defect in affidavit on which publication was had alleging that husband failed to comply with requirements of statute regarding publication of notice and process in divorce suit and that there had been no valid process had on wife, held, as against demurrer, to negative inference that court rendering divorce decree had before it another seasonably made affidavit on which publication was made (Ann. Code 1892, sec. 3421).
3. DIVORCE.
Wife held entitled to vacation of divorce decree entered after ineffective publication of notice because of defective affidavit, where property rights of wife were affected thereby, notwithstanding that death of husband resulted in abatement of suit for divorce.
4. DIVORCE.
Petition to set aside divorce decree on ground of defect in publication of notice held not required to be filed within two years after date of filing of decree as required by statute relating to bills of review, since courts have power to set aside judgments without obtaining jurisdiction of person of defendants thereto on motion or petition, although term of court at which judgment was rendered has expired and without limitation of time within which such action must be taken (Ann. Code 1892, sec. 3421; Code 1930, sec. 2322).
5. DIVORCE.
Petition of wife to set aside divorce decree entered when court was without jurisdiction of wife's person held not barred by laches, where petition alleged that rendition of decree was unknown to wife (Ann. Code 1892, sec. 3421). (See syllabus on Suggestion of Error).
ON SUGGESTION OF ERROR.
(
[174 So. 255. No. 32539.]
1. DIVORCE.
Decree of divorce which did not recite that publication was made for nonresident defendant held not void where decree was rendered by court of general jurisdiction and hence decree could not be collaterally attacked.
2. JUDGMENT.
One may become estopped from complaining of a defective judgment or decree by accepting benefit thereof with knowledge of its rendition, and may forfeit right to complain thereof by laches.
3. DIVORCE.
Husband could not have divorce decree set aside where it was rendered at his instance with knowledge, actual or presumed, of its irregularity.
4. DIVORCE.
Wife could not complain of decree of divorce secured in husband's suit therefor if she had known of existence of decree for more than thirty years but delayed instituting any proceeding to have it set aside until after husband's death notwithstanding affidavit on which publication was made for wife who was a nonresident was defective where decree was not void because rendered by a court of general jurisdiction.
HON. M. B. MONTGOMERY, Chancellor.
Proceeding by Mrs. Eva Cooper Cratin against Mrs. Paul B. Cratin. From a decree overruling a demurrer to her motion or petition to vacate a divorce decree theretofore rendered, the defendant appeals. Affirmed and remanded.
On suggestion of error.
Former judgment of the Supreme Court affirming a decree overruling a demurrer to plaintiff's motion or petition to vacate a divorce decree theretofore rendered and remanding cause set aside and judgment rendered affirming decree overruling the demurrer and reversing a decree holding plea filed after overruling demurrer to petition insufficient.
A. K. Foot, of Canton, for appellant.
We may presume that Judge Conn when this case was called thirty-six years ago, conscientiously and painstakingly, examined the allegations of the original bill and the affidavit to see if they complied with the provisions of section 3421 of the Code of 1892.
Brotherhood of Railroad Trainmen v. Agnew, 155 So. 205, 170 Miss. 604; Broom v. Board of Suprs., Jefferson Davis County, 158 So. 344, 171 Miss. 586.
Judge Conn in considering the sufficiency of the allegations of the bill and affidavit as to the postoffice address of the defendant found the following allegations: "The last time said Cratin heard of said Eva Cooper, she was a resident of Florida, but at present he knows not her whereabouts and has had no connection with said Eva Cooper since May 1, 1894." Judge Conn in considering the above allegation as to the postoffice of defendant found that the foregoing allegation was a substantial compliance with the statute
We must bear in mind that Judge Conn had complainant before him and we have a right to indulge in the presumption that Judge Conn after considering the allegations of the bill and affidavit examined the complainant in person and satisfied his mind that the complainant did not actually know the postoffice address at that time of his wife. We may even indulge in the presumption that the Chancellor required a new affidavit to be prepared incorporating in detail the requirements of the statute and that this affidavit through lapse of time had been lost, for did not our court in McCallum v. Spinks, 91 So. 694, 129 Miss. 237, hold that the court did presume that a new process would be presumed to have been issued, properly served and became lost through lapse of time rather than to hold a default decree a mere nullity where the file showed that the original process was void because it did not contain the seal of the chancery court. In that case thirty-three years had elapsed since the decree was attacked. In our case thirty-five years has elapsed.
Cox v. Simmons, 57 Miss. 196; Hester v. Hester, 103 Miss. 13, 60 So. 6, Ann. Cas. 1916B, 428.
The letter of section 3421, Code of 1892, does not require where the postoffice is unknown that there be the further allegation that "diligent inquiry has been made to ascertain same." This further essential element was read into section 3920 of the Code of 1906 in the case of Ponder v. Martin, 80 So. 388, 119 Miss. 156, which was decided January 20, 1919.
There will be found no case prior to September, 1900, that holds that under section 3421 of the Code of 1892 the bill or affidavit must further state that diligent inquiry has been made to ascertain the postoffice of the absent non-resident defendant, where it is stated that it is unknown to the complainant.
Judge Conn found that the statute had been complied with and this must stand as the law of the case unless reversed on appeal. Judge Conn might have been wrong in his conclusions; his findings might have been erroneous, but if such was the case it was simply an error in the assumption of jurisdiction and does not render the decree a mere nullity. The appellee Eva Cratin relied on this decree and used it as protection for almost thirty-five years. If she did not have actual notice of it, and it is absurd to presume otherwise, she had constructive notice of it.
Adams v. Belt, 100 So. 191, 136 Miss. 511.
Our court in McCray v. McCray, 102 So. 174, 137 Miss. 160, has established a rule that after the death of one of the parties the surviving party may properly maintain a suit for the annulment of decree for divorce in a proper case.
Dwyer v. Nolan, 40 Wash. 459, 5 A. & E. Ann. Gas. 890; 57 L. R. A. 583; 44 L. R. A. (N. S.) 505.
But all the courts agree that the attack on the decree should be timely, and I have found no case where annulment was granted after thirty-five years had elapsed.
Sedlak v. Sedlak, 14 Ore. 540, 13 P. 452.
It is the rule that where the court has been asked to vacate a decree because the court granting the decree did not have jurisdiction of the defendant, that the petition is an entry of appearance and if the decree should be vacated the defendant is then permitted to demur or answer the bill for having appeared for one purpose, he has appeared for all purposes.
Amis on Divorce and Separation in Mississippi, sec. 300; McCoy v. Watson, 154 Miss. 307, 122 So. 368; Kirschner v. Dietrich, 110 Cal. 502, 42 P. 1064.
If a suit for divorce was pending and on the docket before any decree was rendered or any hearing the court would certainly dismiss the cause on the showing of death of either party and the Supreme Court, if such a case was pending in it, would certainly dismiss appeal, especially if there was no question of alimony or property rights involved.
The original bill in this case shows that there was no question of alimony, property rights or custody of children. The only question involved was the status of the parties. The original defendant, Eva Cratin, is now in court by virtue of a petition to annul the original decree. The court finds that providence has anticipated its action and solved the status by death.
Zoellner v. Zoellner, 46 Mich. 511, 9 N.W. 831; Roberts v. Roberts, 19 R.I. 349, 33 A. 872.
Why should not the section 3222 of the Code of 1930 entitled "Bills of Review Limited" apply to this case? This section provides that bills of review in chancery shall be filed within two years next after the date of the final decree in the cause. Or section 2316, Code 1930, limitation of expressed trust.
Garner v. Townes, 100 So. 20, 134 Miss. 791.
Our Supreme Court has recently held in Ellis v. Ellis, 152 Miss 836, 119 So. 304; White v. Williams, 154 Miss. 897, 124 So. 64, 159 Miss. 732, 132 So. 573, that a suit to nullify a marriage must be brought during the lifetime of both parties by one of them in...
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