Drummond v. Lynch

• Decision Date: 27 March 1936
• Docket Number: No. 7674.,7674.
• Citation: Drummond v. Lynch, 82 F.2d 806 (5th Cir. 1936)
• Parties: DRUMMOND et al. v. LYNCH et al.
• Court: U.S. Court of Appeals — Fifth Circuit

82 F.2d 806 (1936)

DRUMMOND et al. v.LYNCH et al.

No. 7674.

Circuit Court of Appeals, Fifth Circuit.

March 27, 1936.

R. L. Bullard, of Hattiesburg, Miss., and Geo. W. Barcus, of Waco, Tex., for appellants.

W. M. Sleeper and E. Y. Boynton, both of Waco, Tex., for appellees.

Before HUTCHESON, Circuit Judge, and DAWKINS and STRUM, District Judges.

STRUM, District Judge.

This appeal is from a decree adverse to the plaintiffs below in a suit in equity seeking partition of the estate of C. L. Lynch, deceased, and an accounting.The controversy is between Lynch's first wife and a daughter by that marriage, citizens of Mississippi, as plaintiffs, and his third wife and the children of his second marriage, their heirs at law or personal representatives, all citizens of Texas, as defendants.The property involved is in Texas.

C. L. Lynch married Ella J. Turner, now Ella J. Drummond, one of the plaintiffs herein, in Water Valley, Miss., in 1889, where they lived together until January 3, 1890.On December 23, 1889, their daughter Lucille Bullard, coplaintiff herein, was born.On January 3, 1890, Lynch left Water Valley to find a new business location.After a brief stay in Memphis, Lynch went to St. Louis, Mo., where on February 4, 1892, in a suit instituted by him in the circuit court for the city of St. Louis, a final decree was rendered divorcing him from his then wife, Ella J. Lynch, now Drummond.

While the divorce suit was pending, Lynch purchased some of the property here in question in Hico, Tex.Some time thereafter, the exact time being obscure, he established his domicile there and on December 18, 1894, married Nannie J. Keffer, with whom he lived until her death, November 20, 1909.Children of this marriage were C. L. Lynch, Jr., a defendant herein, Granada Lynch, and Earl Lynch.The latter died during the pendency of this suit, and his interest is represented herein by his administrator.Granada died about 1917, intestate and without issue, leaving surviving her a husband, Woods Anderson, who later remarried, and who died intestate during the pendency of this suit, leaving surviving him his second wife, Grace Anderson, and two sons by his second wife, J. W. Anderson and Berschel Anderson, all of whom have intervened herein as heirs at law of Woods Anderson, claiming the interest in the estate of C. L. Lynch, Sr., to which Woods Anderson would be entitled as an heir at law of Granada Lynch.

On December 17, 1912, Lynch, Sr., married a third wife, Helen Laney, also a defendant herein, and lived with her until Lynch's death, February 12, 1933.There were no children of this union.Substantial portions of Lynch's estate were acquired by him during each of his marriages, and some, as to which he died intestate, during the interim between his first and second marriages.

PlaintiffLucille Bullard, daughter of Lynch, Sr., by his first marriage, claims a child's interest in his estate under the Texas laws of descent and distribution.PlaintiffElla J. Drummond, Lynch's first wife, contending that the Missouri divorce decree is void, asserts that she is his lawful widow and, as such, entitled to a community one-half interest in the entire estate left by Lynch, Sr., at his death.

The District Court(1) sustained the divorce decree as against collateral attack; (2) rejected the claim of Ella J. Drummond to share as widow in Lynch's estate, except as to the community property acquired by Lynch during his first marriage and owned by him at the time of the divorce, and which he still owned at his death, in which limited portion of the estate she was awarded a one-half interest; and (3) held that Lucille Bullard was confined to the provision made for her in her father's will, hereinafter mentioned, except as to certain property as to which Lynch, Sr., died intestate, in which, under the Texas laws of descent and distribution, Lucille as an heir at law of her father, Lynch, Sr., was awarded a child's part, subject to the widow's homestead rights.As an heir at law of her half sister, Granada Lynch, who died intestate, Lucille was also awarded an appropriate interest in Granada's interest in Lynch Senior's estate inherited through her deceased mother.The remaining estate was awarded in appropriate shares to the defendantHelen Lynch, third wife of Lynch, Sr., who survived him; to the children of the second marriage, or those representing them; and to the heirs of Woods Anderson, the latter heirs being awarded Woods Anderson's share as an heir at law of his deceased first wife, Granada Lynch.Plaintiffs appeal.Defendants do not question the decree.

When Lynch, Sr., left Water Valley, January 3, 1890, he left his then wife and child, plaintiffs herein, behind him, stating that he would send for them later.In an effort to join her husband several months later, Mrs. Lynch went to Memphis, where she received a letter from Lynch requesting her to meet him in St. Louis, which she asserts she desired to do but was unable because she had no money for expenses.Later she went to Louisiana where she remained until March, 1893.Some time in the summer or fall of 1892she learned that Lynch had secured a divorce from her in St. Louis.She requested the postmaster at Kentwood, La., where she was then living, to investigate and see if it was too late to do anything about defending the suit or getting alimony.The postmaster later advised her that the case was finished and the divorce granted.She then married Mr. Drummond in March, 1893, at Kentwood, La. Drummond is said to have died some twenty years ago.Mrs. Drummond lived with this second husband at McComb, Miss., for about a year.She bore a son by him, who is now about thirty-nine years old.After separating from her second husband, she lived at various places in Louisiana, but returned to reside in Mississippi before this suit was brought.

Lynch's suit for divorce against his first wife was instituted February 16, 1891.The cause was styled "C. L. Lynch, versus Ella J. Lynch."In his petition Lynch alleged, in compliance with the requirements of the Missouri statutes, that "plaintiff(Lynch) is now and has been a resident of the State of Missouri a whole year next before filing petition," which petition was sworn to by Lynch.On February 17, 1891, order of publication and notice to nonresident defendant of suit filed and grounds asserted was issued, citation being returnable to the April term, 1891.Said notice and citation was styled as aforesaid, but not otherwise specifically addressed to the defendant.It stated that the object and general nature of the suit was to obtain a decree of divorce upon the grounds fully stated therein.It was published February 18, 25, and March 4 and 11, 1891, as required by the Missouri statutes.Testimony by deposition was taken on behalf of plaintiff during June, 1891.On July 7, 1891, a purported answer of the defendantElla Lynch, consisting of a categorical general denial, was filed by one Rowe as attorney for defendant.Mrs. Drummond (Lynch) denies that she ever employed the attorney or gave him authority to file the answer.The attorney testified that he did not recollect any employment by Mrs. Drummond, then Mrs. Lynch, but surmises that he probably filed the answer pursuant to direction of the judge before whom the divorce suit was pending.Plaintiffs here assert that filing of the answer was fraudulently procured by Lynch.The record shows that Lynch moved to strike the answer, but the motion was overruled.On February 14, 1892, the Missouri court entered its final decree, which recites: "Now at this day comes said parties by their respective attorneys, and submit this cause to the Court upon the pleadings and proof, and the Court having heard the evidence herein, being satisfied that the plaintiff is an innocent party and entitled to the relief prayed for in his petition, doth order, adjudge, and decree," etc.

Assailing the divorce decree, plaintiffs here assert that the facts upon which the divorce was granted, particularly those relating to Lynch's residence in Missouri, were false; that the matrimonial domicile remained in Mississippi; and that Mrs. Drummond (then Lynch) had no notice of the pendency of the suit until after decree.

The Missouri court which rendered the decree is a court of record and of general jurisdiction in such matters.Ray v. Ray, 330 Mo. 530, 50 S.W.(2d) 142.As this attack is brought in a United States court sitting in Texas, however, the Missouri decree is foreign, not domestic (34 C.J. 1124), so that it is here open to inquiry, even upon this collateral attack, whether the Missouri court had jurisdiction of the parties and subject-matter.Contrary to the rule when a domestic judgment is under consideration, in which case evidence aliunde to impeach the judgment roll is inadmissible (34 C.J. 537), recitals of the judgment record of a foreign judgment are not conclusive as to jurisdiction, but in that respect may be controverted by extraneous evidence.Thompson v. Whitman, 18 Wall. 457, 21 L.Ed. 897;Simmons v. Saul, 138 U.S. 439, 11 S.Ct. 369, 34 L.Ed. 1054;Grover & B. Sewing Machine Co. v. Radcliffe, 137 U. S. 287, 11 S.Ct. 92, 34 L.Ed. 670;Cole v. Cunningham, 133 U.S. 107, 10 S.Ct. 269, 33 L.Ed. 538;34 C.J. 1144, 1159;19 C.J. 175, 375.The inquiry, however, must be confined to jurisdictional infirmities which would render the decree void.It cannot be here reviewed, nor impeached, for mere irregularities.Thompson v. Tolmie, 2 Pet. 157, 7 L.Ed. 381.If the Missouri court had jurisdiction of the parties and subject-matter, its decree is entitled to full faith and credit (U.S.Const. art. 4, § 1), and to the same force it would have in Missouri.Jurisdiction appearing, it is presumed that it was rightfully exercised, particularly after a lapse of 40 years.19 C.J. 176;34 C.J. 541.

There is no presumption, however, that a court rendering a foreign decree had jurisdiction when the...