Cratin v. Cratin

• Citation: 174 So. 255,173 So. 415,178 Miss. 881
• Decision Date: 17 May 1937
• Docket Number: 32539
• Court: United States State Supreme Court of Mississippi
• Parties: CRATIN v. CRATIN

173 So. 415

174 So. 255, 178 Miss. 881

CRATIN v. CRATIN

No. 32539

Supreme Court of Mississippi

May 17, 1937

Division A

March 22, 1937

APPEAL from the chancery court of Madison county 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 flied after overruling demurrer to petition insufficient.

Affirmed and remanded. Judgment affirmed in part and reversed in part.

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. Cas. 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 a direct proceeding against the other. By analogy this rule should be extended to the annulment of a decree granting the divorce except under very unusual circumstances and then when the attack is timely.

The courts are getting away from the proposition that judgments and decrees of courts of general jurisdiction where the assumption of jurisdiction was erroneously exercised are mere nullities in any case.

Brooks v. Spann, 63 Miss. 198; Adams v. Belt, 100 So. 191, 136 Miss. 511; Allen, Trustee, v. Dicken, 63 Miss 91; Western Union Tel. Co. v. Williams, 127 S.W. 791; Duphorne v. Moore, 107 P. 791; Black v. Black, 64 Kan. 689, 68 P. 662; Donaldson v. Jacobitz, 67 Kan. 244, 72 P. 846.

A judgment that merely ought to be nullified is still a judgment.

Simpson v. Kimberlin, 12 Kan. 579; Duphorne v. Moore, 107 P. 791; Cotton v. McGehee, 54 Miss. 623; Noonan v. Bradley, 12 Wallace 129, 20 L.Ed. 281; 1 Wheat. 304, notes.

I will conclude by simply remarking that if appellee's petition is sustained that divorced parties living in this state had better have their divorce decrees looked into and, if possible, obtain a surety bond, or they may find that the chains of matrimony have not been severed, and that they are still the legal, if not loving, spouse of another.

A. K. Foot, of Canton, for appellant, on Suggestion of Error.

In McElrath v. Littell, 120 Minn 380, 139 N.W. 708, 44 L. R. A. (N. S.) 505, the court held that when after the death of the husband, the wife sued, contesting the validity of the decree for divorce, the state was not an interested party.

In Hunt v. Hunt, 75 Misc. 209, 135 N.Y.S. 39, it was held that a motion to revive an action for absolute divorce, and to vacate the final judgment on the ground of fraud, should be denied where the libellant was dead at the time the motion was made, since, under the circumstances, there was no action pending in which the judgment could be vacated.

In Sedlak v. Sedlak, 14 Ore. 540, 13 P. 452, the Oregon court held that: "After acquiescing in a decree and accepting benefits under it for thirty years, such decree cannot be impeached by the defendant on the ground that it was entered without notice, knowledge or consent."

Kirschner v. Dietrich, 110 Cal. 502, 42 P. 1064; Zoellner v. Zoellner, 46 Mich. 511, 9 N.W. 831; Roberts v. Roberts, 19 R. I. 349, 33 A. 872; Dwyer v. Nolan, 40 Wash. 459; Maher v. Title Guarantee, etc., Co., 95 Ill.App. 389; Given v. Given, 25 Pa. S.Ct. 467; Bomsta v. Johnson, 38 Minn. 230, 36 N.W. 341.

Equity aids the vigilant, not those who slumber on their rights.

21 C. J. 193.

We submit that Eva Cooper Cratin by her extreme procrastination and in waiting until the voice of her exhusband was stilled by death has forfeited any rights she may have in his estate.

White & McCool, of Canton, for appellee.

It is the first, and one of the most important of the duties of courts to see to it, before proceeding in any case, that the court has jurisdiction both of...