Duvall v. Duvall

• Decision Date: 13 June 1955
• Docket Number: No. 39671,39671
• Citation: Duvall v. Duvall, 224 Miss. 546, 80 So.2d 752 (Miss. 1955)
• Parties: Mrs. Leone R. DUVALL v. Harry M. DUVALL.
• Court: Mississippi Supreme Court

Page 752

80 So.2d 752

224 Miss. 546

Mrs. Leone R. DUVALL v. Harry M. DUVALL.

No. 39671.

Supreme Court of Mississippi.

June 13, 1955.

Suggestion of Error Overruled July 15, 1955.

See 81 So.2d 695.

Mitchell & Simmerman, Pascagoula, for appellant.

Luther Austin, Laurel, Barnett, Jones & Montgomery, Jackson, for appellee.

GILLESPIE, Justice.

On direct appeal Mrs. Duvall assigned numerous errors, the principal ones being the denial of separate maintenance, and the denial of an allowance to her attorney. The chancellor was amply supported by the evidence and we find no reversible error. The questions raised on direct appeal do not warrant discussion. The direct appeal is, therefore, affirmed.

Mr. Duvall perfected a cross-appeal, and his principal contention is that the lower court erred in making a division of the personal property to one-half of which Mrs. Duvall asserted an equitable right; that inasmuch as the court found and decreed that Mrs. Duvall was not entitled to be separately maintained by Mr. Duvall, the only decree the court had jurisdiction to enter was one dismissing the suit.

The answer of Mr. Duvall did not deny that the complainant was entitled to one-half of the property described in the original bill, and the lower court was justified in construing the answer as admitting the right of Mrs. Duvall to one-half the property. Moreover, Mr. Duvall's attorney, at the close of the testimony, dictated into the record the following: 'Comes now, Harry M. Duvall, by his solicitor of record and moves the court to grant the relief prayed for by the complainant (Mrs. Duvall) in the original bill of complaint which asks that all the property acquired by complainant and defendant during the married life of these parties be divided equally between them, the answer having admitted that the complainant would be entitled to half of that property, if she so desired, but that the complainant be denied alimony for herself in addition to one-half of the property, which was attached to and made a part of the complaint.'

It will thus be observed that Mr. Duvall consented to everything that was done by the court in reference to dividing the property. The basis of the argument on Mr. Duvall's cross-appeal is that the court had no jurisdiction to enter the decree dividing the property, and that the parties may not confer jurisdiction on a court that has none.

If there was any lack of jurisdiction, it was that the court did not have jurisdiction of the subject matter. Other jurisdictional questions may be waived. 21 C.J.S., Courts, Sec. 109. We consider the sole question of whether the court had jurisdiction of the subject matter.

It is a universal rule of law, recognized by the text writers and every court dealing with the question, that parties cannot, by consent, give a court, as such, jurisdiction of subject matter of which it would otherwise not have jurisdiction. Jurisdiction in this sense cannot be increased or diminished by the consent of the parties. 14 Am.Jur., Courts, Sec. 184; 21 C.J.S., Courts, Sec. 109; Holloman v. Holloman, 13 Miss. 559; Switzer v. Benny, 94 Miss. 209, 48 So. 401; Hauger v. Hauger, 376 Pa. 216, 101 A.2d 632; Griffith, Miss. Chancery Practice, Sec. 22.

It is equally well settled that a judgment rendered by a court having no jurisdiction of the subject matter is void, not merely voidable, and may be attacked directly or collaterally, anywhere, and at any time. Such a judgment is a usurpation of power and is an absolute nullity. 31 Am.Jur., Judgments, Secs. 406, 408; 21 C.J.S., Courts, Sec. 116; 49 C.J.S., Judgments, Sec. 421; Malone v. Meres, 91 Fla. 709, 109 So. 677.

Jurisdiction of the subject matter is the power of the court to hear and determine cases of the general class to which the particular case belongs. 21 C.J.S., Courts, Sec. 23. It is the right or power to deal with the general abstract question, to hear the facts in a particular case relating to this question, and determine whether they are sufficient to invoke the exercise of that power. Malone v. Meres, supra. The subject matter means the nature of the cause of action and the relief sought. The jurisdiction of a court is limited as to subject matter when it has not the power to hear and determine all classes of cases. 14 Am.Jur., Courts, Sec. 208.

But if a court has jurisdiction of the subject matter, it has the power to decide the case according to its own view of the law and the facts; the test of jurisdiction is whether the court has the right to enter on the inquiry, and not whether its methods were regular, its findings right, or its conclusions according to law. 21 C.J.S., Courts, Sec. 27. And jurisdiction should be distinguished from the exercise of jurisdiction. The authority to decide a case at all, and not the decision rendered therein, is what makes up jurisdiction, and when there is jurisdiction of the person and subject matter, the decision of all other questions arising in the case is but an exercise of that jurisdiction. The test of jurisdiction is the power to act, not the correctness of its decision. 21 C.J.S., Courts, Secs. 26 and 27; Malone v. Meres, supra.

Nor is the test of jurisdiction determined by whether the complaint states a cause of action. When the court has jurisdiction of the parties and the subject matter, a judgment rendered on a complaint that does not state a good cause of action is not void and subject to collateral attack; and when a court dismisses a petition or complaint for failure to state a good cause of action the dismissal in such case, when the proper parties are before the court and the court has general jurisdiction of the abstract question involved, is on the merits and not for lack of jurisdiction. Gasper v. Mazur, 157 Neb. 857, 62 N.W.2d 117. Whether the complaint states a cause of action on which relief could be granted is a question of law which must be decided after and not before the court has assumed jurisdiction of the cause. West Coast Exploration Co. v. McKay, 93 U.S.App.D.C. 307, 213 F.2d 582; Williams v. Steamship Mutual Underwriting Association, Ltd., Wash., 273 P.2d 803.

The term 'jurisdiction' is sometimes loosely used in equity cases when the writers meant only to inquire whether the facts before the court presented a case for the proper exercise of the power of the court. When so used, the term does not mean 'jurisdiction' in the sense that we have here under consideration. To have reached that stage of the case where the court enters upon the inquiry whether the facts call for the exercise of equity power, the court must necessarily have predetermined whether it had jurisdiction. The question of the existence of jurisdiction is an abstract inquiry that precedes all other inquiries and proceedings. The existence of jurisdiction is consistent with the denial of any equity in any of the parties to the suit. The term 'jurisdiction' as used in Etheridge v. Webb, 210 Miss. 729, 50 So.2d 603, did not refer to the question of the power of the chancery court to entertain an equity suit for separate maintenance, but rather, as we have heretofore noted, the term was used in the sense of stating what state of facts were sufficient to call for the exercise of the power of equity.

The question of jurisdiction, in the sense we are here considering, that is, whether the court had the power to enter upon the inquiry at all, had necessarily preceded the inquiry into the facts. If the judgment in the Etheridge case had been decided either way by the lower court and not attacked directly, it would have been unassailable collaterally, which is to say that the court had jurisdiction of the case regardless of whether the facts met the requirements set out in the opinion.

The settlement of the property rights of Mr. and Mrs. Duvall was a proper subject of equity jurisdiction under the settled principle of equity procedure that the chancery court, having taken jurisdiction of one ground of equity, in this case the suit for separate maintenance, would then proceed in the one suit to a complete adjudication and settlement of every one of the several disputed questions materially involved in the entire transaction, awarding by a single...