Crimm v. Crimm

• Decision Date: 07 February 1924
• Docket Number: 6 Div. 924.
• Citation: 99 So. 301,211 Ala. 13
• Parties: CRIMM v. CRIMM.
• Court: Alabama Supreme Court

99 So. 301

211 Ala. 13

CRIMM v. CRIMM.

6 Div. 924.

Supreme Court of Alabama

February 7, 1924

Appeal from Circuit Court, Pickens County; R.I. Jones, Judge.

Bill in equity by Hommie A. P. Crimm against John T. Crimm for divorce. From a decree for complainant, respondent appeals. Reversed and remanded.

F. F Windham, of Tuscaloosa, and P. B. Traweek, of Elba, for appellant.

H. A. &amp D. K. Jones, of Tuscaloosa, for appellee.

SOMERVILLE J.

Appellant's chief contentions are (1) that the amendment to the bill was without notice to respondent, and as to it there was neither answer nor decree pro confesso, wherefore the submission for final decree was premature and erroneous and (2) that the decree granting a divorce to complainant was erroneous, because it appeared that a valid divorce a vinculo matrimonii was granted to him against complainant by the superior court of Fulton county, Ga., on November 29, 1920.

Under the Act of September 22, 1915 (Gen. Acts 1915, p. 705), a copy of the amendment to the bill of complaint should have been served on the respondent, or his solicitor of record and the respondent should have been required to answer within 20 days thereafter. It does not appear that any notice of this amendment was given as required by law, and very clearly the cause was not ready for submission at the time it was submitted by the complainant-6 days after the filing of the amendment. Respondent was not present and did not join in the submission of the cause, and hence did not waive his right to have notice, and to make further answer and proof.

We deem it advisable, however, to state the principles of law which are applicable to the decree of divorce by the Georgia court, exhibited by respondent as a bar to the relief sought by the bill of complaint.

"The Supreme Court of the United States has now definitely decided that the courts of the state of the last matrimonial domicile may grant a decree of divorce without personal service of process upon, or the appearance of, defendant therein, where service of process is made in accordance with the laws of that state, and that such a decree is entitled to full faith and credit in the courts of all the states of the Union." 19 Corp. Jur. 373 (§ 841); Thompson v. Thompson, 226 U.S. 551, 561, 33 S.Ct. 129, 57 L.Ed. 347; Haddock v. Haddock, 201 U.S. 562, 26 S.Ct. 525, 50 L.Ed. 867, 5 Ann. Cas. 1; Atherton v. Atherton, 181 U.S. 155, 21 S.Ct. 544, 45 L.Ed. 794; Id., 155 N.Y. 129, 49 N.E. 933, 40 L. R. A. 291, 63 Am. St. Rep. 650.

But the same text, supported by the same authority, correctly states that-

"Where the state of plaintiff's domicile is not also the matrimonial domicile, a decree of divorce based upon substituted service and without personal jurisdiction over defendant, although enforceable in the jurisdiction where rendered, is not entitled to obligatory enforcement in other states in virtue of the full faith and credit clause of the federal Constitution."

But, on principles of comity, such decrees are generally recognized as valid and binding in other states, when they do not contravene good morals or public policy. 19 Corp. Jur. 374 (§ 841); 9 R. C. L. 516, § 337. An excellent discussion of the rationale and practice of this comity will be found in Joyner v. Joyner, 131 Ga. 217, 62 S.E. 182, 18 L. R. A. (N. S.) 647, 127 Am. St. Rep. 220. In Alabama this rule of comity undoubtedly prevails, but it does not require the courts of this state to recognize as valid a judgment of a sister state on a showing of jurisdiction which would not support a domestic judgment of the same character.

The jurisdiction of divorce is vested in courts of equity by statute, and as to that subject they are courts of special and limited jurisdiction. Martin v. Martin, 173 Ala. 106, 55 So. 632; 9 R. C. L. 396, § 190. In Martin v. Martin, supra, it was said that-

"With respect to the judicial acts of courts exercising special and limited jurisdiction, the existence of jurisdictional facts is not inferred from the mere exercise of jurisdiction, but must affirmatively appear from the record."

In Foster v. Glazener, 27 Ala. 391, this court considered the validity of a summary judgment rendered by the superior court of Forsyth county, Ga., the transcript of which did not show that court had obtained jurisdiction of either the person or property of Glazener. It was there said:

"But it may be said, that the superior court of Georgia is one of general jurisdiction, and every intendment is to be made in favor of the jurisdiction of such court, and of the regularity of its proceedings; that its proceedings are to be deemed valid, until its jurisdiction is disproved by the party resisting them. This proposition may be conceded, and yet the appellant can take no benefit from it, for the reason that, although the court is one of general jurisdiction, its powers respecting the subject-matter of adjudication are special and limited; and in respect of such extraordinary jurisdiction, which is in derogation of the common law, and summary in its character, the court is placed upon the same footing with a court of special and limited jurisdiction."

Applying the principle stated to the case in hand, the court further observed:

"By the statute law of Georgia, the superior court has power and authority given it 'to establish copies of lost papers, deeds, or other writings, under such rules and precautions as are or may have been customary and according to law and equity.' What were the rules and precautions which were customary, and which accorded with law and equity? We are not informed by this record. It is clear that no person ought to be bound by any judicial proceeding, to which he was neither a party nor privy, and against

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