Hester v. Hester

• Citation: 103 Miss. 13,60 So. 6
• Decision Date: 09 December 1912
• Docket Number: 15,516
• Court: United States State Supreme Court of Mississippi
• Parties: ALMA S. HESTER ET AL v. BAILEY COBB HESTER ET AL

60 So. 6

103 Miss. 13

ALMA S. HESTER ET AL v. BAILEY COBB HESTER ET AL

No. 15,516

Supreme Court of Mississippi

December 9, 1912

APPEAL from the chancery court of Sharkey county, HON. E. N. THOMAS Chancellor.

Suit by Alma S. Hester and others against Bailey Cobb Hester and others. From a decree sustaining a demurrer to the bill and rendering a final decree for defendant, complainant's appeal.

The facts are fully stated in the opinion of the court.

Affirmed.

W. H Clifton, for appellants.

A collateral attack by a surviving party on a decree of divorce, after death of party obtaining divorce, may be made for want of jurisdiction over the parties or for fraud. Lawrence v. Nelson, 57 L. R. A. 583, 586, 594, 596 598-9; 14 Cyc. 722E, 655, 657D, 659D; Cheely v Clayton, 28 L.Ed. 298, 110 U.S. 701; Fernwood Lumber Co. v. Lumber Co., 85 Miss. 54, 37 So. 502; Moore v. Somerville, 80 Miss. 323, 32 So. 249; Duke v. State, 57 Miss. 229; Plummer v. Plummer, 37 Miss. 185, 199; Richardson v. Brooks, 52 Miss. 125.

The action of divorce is inter parties and contracts of marriage cannot be dissolved or annulled any more than other contracts, except by the court obtaining jurisdiction of the person. The marriage relation is not a res, within the state where the jurisdiction of the court is invoked. Nor can the marital status be changed or dissolved by estoppel. Haddock v. Haddock, 201 U.S. ; Woodson v. K. of H., 97 Miss. 210, 216; Suter v. Suter, 72 Miss. 345.

The averment of the bill which was admitted by the demurrer show that the court was imposed upon by Charles O. Hester in that his wife Alma was sent out of the state by him to Cainall, Oklahoma, for the purpose of obtaining a divorce, which being true did not make her a nonresident.

2nd. Because when the suit was filed the defendant in the divorce suit, complainant here, though actually residing in Oklahoma, then Indian Territory, had been sent out of the state by fraud of her husband for the purpose of obtaining a divorce; and his domicile in Monroe county was her domicile, and failure to obtain personal service on defendant while here in Mississippi was fraud on the jurisdiction of the court which makes the decree void. 14 Cyc. 718, 613, 819; Suter v. Suter, 72 Miss. 345, 16 So. 673; Haddock v. Haddock, 50 L.Ed. 875; Andrews v. Andrews, 47 Miss. 372; Bell v. Bell, 45 Miss. 804; Streitwalf, 45 Miss. 810; Atherton v. Atherton, 45 Miss. 794, 804.

The jurisdiction of the court can always be inquired into when its judgments and decrees are attacked. And the precise question here is "whether the wife Alma was justified by the fault of the husband in leaving him in Mississippi?" The case on this question is determinable on the facts existing at the time of the filing of the bill and entering of the decree. The averments of the bill which are admitted by the demurrer show that the court was imposed on by Charles O. Hester, in that his wife, Alma, was sent out of the state by him to Cainall, Oklahoma, for the purpose of obtaining a divorce, which being true did not make her a nonresident. On the contrary the domicile of her husband fixed her domicile here in Monroe county, Miss., and the court could have obtained jurisdiction over her person only by personal service of process.

The principle upon which the case of Suter v. Suter, 72 Miss. 345, was determined applies in full vigor to this case.

The cases cited supra from the United States Supreme Court apply the same salutary principle. The fact that these cases were decided under the full faith and credit clause of the Federal Constitution does not make them any less an authority applicable to and governing the instant case.

On the contrary the domicile of her husband fixed her domicile here in Monroe county, Miss, and the court would have obtained jurisdiction over her person only by personal service of process. And the decree, being obtained on a false charge and by perjured testimony, was a fraud on the court.

In Suter v. Suter, supra, our own court said it was a fraud upon the jurisdiction of the court for the wife to file a bill for divorce and alimony alleging the husband's residence to be New Orleans, La., when she failed to show "reasonable grounds why she should not return to her husband's home and hers." It is true that there was a direct proceeding on appeal from a decree granting the relief asked; but it being a question of jurisdiction, the facts on which the jurisdiction of the court depended can be shown in a collateral proceeding, as the state and the United States authorities cited in this brief abundantly show.

McLaurin & Thames, for appellees.

The original bill was filed October 10, 1910, fifteen and one-half years after the appellant had notice of the divorce decree. This is a full and complete estoppel. Woodson v. Colored Grand Lodge of Knights of Honor of America, 97 Miss. 210, 52 So. 457, is conclusive of the case. It is there said by MAYES, C. J., speaking for a unanimous court, between two periods, "On principal, we do not know of any reason why the rules of estoppel should not be applied as strictly to the facts of this case as any other civil contest."

The amended bill which contradicts the sworn allegations of the original bill admits that the appellant heard in one year after she left Mississippi that C. O. Hester was married. She lay idle fifteen and a half years, until five children were born and property accumulated, and also until C. O. Hester was dead, and then turns up with this suit. No court of conscience in the world will permit this. The court having decided that the law of estoppel will apply in cases of this kind, as well as civil suits of other kinds, we call attention to the fact that all the authorities are in accord on the proposition that appellant has not shown diligence.

In Foster v. Mansfield, Coldwater, etc., Railroad Company, 146 U.S. 199, the court used this language. "The defense of want of knowledge on the part of one charged with laches is one easily made, easy to prove by his own oath and hard to disprove; and hence the tendency of courts of recent years has been to hold the plaintiff to a rigid compliance with the law which demands, not only that he should have been ignorant of the fraud, but that he should have used reasonable diligence to have informed. himself of all the facts."

Appellant by the original bill (sworn to) heard of the divorce decree fifteen and a half years before the suit was filed and by the amended bill heard of the marriage a much longer time.

In Coleman v. First National Bank of Decatur, 22 So. 84, quoting from its own decisions and 2 Pom. Eq. Jur., sec. 865, lays down the law decisively against appellant.

By the original bill (sworn to) she knew of the divorce and decree. By the amended bill she knew of the marriage. She slumbered on her rights fifteen and one-half years and then waited until C. O. Hester was dead and could not defend himself and wife and children and till after he and she had worked hard and accumulated something, and then came to a court of equity to make a pauper out of the appellee and bastards out of her innocent and helpless children.

In Manning et al. v. Pippin et al., decided by the Supreme Court of Alabama, April 26, 1892 and reported in 11 So. 56, this language was used by the court: "In James v. James, 55 Ala. 534, it was said by this court: 'By no mere general averment of ignorance can a party account for long delay and acquiescence. By distinct averments he must show why he was so long ignorant, and acquit himself of all the knowledge of the facts which would put him on inquiry. He must show how and when he first came to the knowledge of the facts, or the court may justly refuse to consider his case, on his own showing, without inquiring whether there is a demurrer or formal plea of the statute of limitations contained in the answer."

Independently of circumstances, equity usually adopts as a bar to the assertion of such trust the period which bars a title at law. Six authorities cited.

Its meaning. Equity aids the vigilant, not those who slumber on their rights. The principle embodied in this maxim operates through its entire remedial portion of equity jurisdiction. Its application and effects have been stated by an eminent English chancellor as follows: "A court of equity, which is never active in relief against conscience or public convenience, has always refused its aid to stale demands when the party has slept upon its rights acquired for a great length of time. Nothing can call forth this court into activity but consicience, good faith, and reasonable diligence. In early times limitations were confined to law. However, courts of equity, proceeding on the analogy of these statutes, applied the law period." Pom. Eq. Jur. (2 Ed.) 418-419.

In 2 Nelson on Divorce and Separation, p. 1008, it is held that courts have a right to protect themselves from fraud. But, said this eminent author, "If an innocent party has married one of the divorced parties, the court refuses application if the motive is to obtain alimony or some pecuniary advantage."

Appellant has not shown in the original bill the amendment to the bill, or the amended bill, or attempted to show any reason whatever for this long delay.

When she heard of the divorce decree in the original bill, and the marriage in the amended bill, she was then put on notice and having held her peace for all these fifteen and one-half years, she is forever estopped.

Appellant knew of the decree of divorce by the original bill (sworn to) and by the amended bill she knew of the marriage one year after the decree was granted. She had two years in this to appeal. See annotated Code 1892, section 3112. That gave her one year after she had knowledge in which to...