Hoagland v. Hoagland

• Decision Date: 17 March 1899
• Citation: 57 P. 20,19 Utah 103
• Court: Utah Supreme Court
• Parties: MAGGIE HOAGLAND, APPELLANT v. FRANK HOAGLAND, RESPONDENT

57 P. 20

19 Utah 103

MAGGIE HOAGLAND, APPELLANT v. FRANK HOAGLAND, RESPONDENT

Supreme Court of Utah

March 17, 1899

Appeal from the Third District Court, Hon. Ogden Hiles, Judge.

Action for the purpose of obtaining permanent alimony under Chap 33, p. 111, Laws of 1896.

From a judgment dismissing plaintiff's action, plaintiff appealed.

Affirmed.

Messrs Shepard & Sanford, for appellant.

A judgment which has for its basis a mere blank order is not worth the paper on which it is written, and we do not perceive under what authority it can be held to have any validity whatever. People v. Ray., 12 P. 160; People v. Mullan, 65 Cal. 396; People v Applegrath, 64 Cal. 229; Chase v. Kaynor, 43 N.W. 269; Platt v. Stewart, 10 Mich. 263.

It appears conclusively from the record that the publication of summons was commenced before the affidavit was filed, and hence before there was any possibility of an order having been or could have been issued legally. This shows clearly that the whole proceeding is void, for the order for publication should not be issued until there is some evidence going to show that it is necessary to resort to this manner of obtaining jurisdiction of the person, and the authorities hold that such an error makes void the whole proceeding. Bradley v. Jamison, 46 Iowa 68; Brown v. St. Paul, 38 N.W. 698; Barber v. Morris, 33 N.W. 559; Anderson v. Coburn, 27 Wis. 562; Cummings v. Tabor, 21 N.W. 72; Murphy v. Lyons, 28 N.W. 328; Corson v. Shoemaker, 57 N.W. 134; Parish v. Parish, 32 Ga. 653; Steere v. Vanderberger, 35 N.W. 110; Priestman v. Priestman, 72 N.W. 534.

It is a settled rule of law that all exceptional methods of obtaining jurisdiction over persons not found within the State must be confined to the cases and exercised in the way precisely indicated by the statute, and it may also be regarded as settled law that a failure to comply with the statutory requirements when the jurisdiction conferred is special and no personal service is obtained, renders the judgment null and void. Thompson v. Thomas, 11 Mich. 274; King v. Harrington, 14 Mich. 532; Miller v. Babcock, 29 Mich. 526; Johnson v. Delbridge, 35 Mich. 436; Woolkins v. Haid, 49 Mich. 299; 13 N.W. 598; Rolfe v. Dudley, 58 Mich. 208; 24 N.W. 657.

We think it clear that the jurisdiction of the court by which a judgment is rendered in any State may be questioned in a collateral proceeding in another State notwithstanding the provision of the Fourth Article of the Constitution and the law of 1790, and notwithstanding the averments contained on the record of the judgment itself. Black on Judgments, Secs. 897 and 901; Van Fleet on Collateral Attack, Sec. 483; Stewart on Marriage and Divorce, Sec. 419; Bishop on Marriage and Divorce, Sec. 102; Simmons v. Saul, 138 U.S. 448; Machine Co. v. Radcliffs, 137 U.S. 287; Kingsbury v. Yuistra, 59 Ala. 320; Greenzweig v. Strelinger, 103 Cal. 278; Marr v. Wetzel, 3 Colo. 2; Aldrich v. Kinney, 4 Conn., 380; 10 Am. Dec., 151; Mitchel v. Ferris, 5 Houston, (Del.), 34; Sammis v. Wrightman, 12 So. 526; Davis v. Smith, 5 Ga., 274; 47 Am. Dec., 279; Kingsbury v. Tously, 47 N.E. 541; Murray v. Murray, 6 Oregon, 17; Price v. Harrell, 29 A. 279; Rathbone v. Terry, 1 R. I., 73; Mc Creery v. Davis, 22 S.E. 178; Chaney v. Bryan, 15 Lea (Tenn.), 589; Leith v. Leith, 39 N.H. 20; Carlton v. Bickford, 79 Mass. 595; People v. Dowell, 25 Mich. 247; 12 Am. Rep. 260; Hays v. Merkle, 67 Mo.App. 55; Barlow v. Steele, 65 Mo. 611; Miller v. Ewing, 6 Sme. & Mar. (Miss.), 421; Eaton v. Hasty, 6 Neb., 419-428; 29 Am. Rep. 365; Gregory v. Gregory, 78 Me. 187; 57 Am. Rep. 365; Hoffman v. Hoffman, 46 N.Y.App. 328; Adams v. Washington, 10 N.Y.App. 328; Starbuck v. Murray, 5 Wend., 148; Borden v. Fitch, 15 Johns, 140; Price v. Ward, 25 N.J.L. 225; Bowler v. Huston, 30 Gratt (Va.), 266; Aultman v. Mills, 36 P. 1046; Crumlish v. Central, etc., 18 S.E. 456; Rape v. Heaton, 9 Wis. 328; Bank v. Anderson, 48 P. 197; Southern Ins. Co. v. Wolverton, 19 S.W. 615; Isett v. Stewart, 80 Ill. 404; Pond v. Simmons, 45 N.E. 48; Raymond v. Raymond, 37 S.W. 202; Harshey v. Blackmarr, 20 Iowa 161; Lowe v. Lowe, 40 Iowa 220; Martin v. Gray, 19 Kan. 458; Thorn v. Solmonson, 15 P. 588; Wood v. Wood, 78 Ky. 624.

Messrs. C. F. & F. C. Loofbourow, for respondents.

The county court of Colorado is a court of record, and its decree is conclusive on all questions of fact when collaterally attacked. 20 Am. & Eng. Ency. of Law, p. 502; Van Fleet on Collateral Attack, Sec. 526; 1 Black on Judgments, Secs. 270, 271, 273; 2 Black on Judgments, Secs. 857, 883, 889; Central Law Journal, March 4, 1898; Hughes v. Cummings, 2 P. 289; Keyser v. Canfield, 49 P. 1066; Charon v. Muton, 31 Ga. 34; Brown v. Tucker, 7 Colo., 34; Amy v. Amy, 42 P. 1121.

Neither the affidavit for publication nor the order for publication, if they were both here, could be used to impeach the decree, because they are not parts of the judgment roll or record. Hahn v. Kelly, 34 Cal. 404; Sharp v. Daughney, 33 Cal. 512; Quincy v. Porter, 37 Cal. 464; Amy v. Amy, 42 P. 1121 (Utah).

These recitals in the decree cover the jurisdictional requirements, and the absence or loss of the order does not and can not contradict or impeach the decree. Black on Judgments, Vol. 1, Secs. 273, 886; Van Fleet on Collateral Attack, Sec. 857; Harris v. Lester, 80 Ill. 307; O'Rear v. Lazarus, 9 P. 621; Naylor v. Mettler, 11 A. 859; Rawlins v. Henry, 78 N.C. 342- 344; Miller v. Hardy, 40 Ill. 443.

OPINION

PER CURIAM.

This action was brought in Salt Lake County on October 27, 1897, by the appellant against the respondent for the purpose of obtaining permanent alimony under Chap. 33, p. 111, Laws of 1896. The parties were married at Buena Vista, Colo., in July, 1881, and lived together in Colorado from one to three months. The complaint alleges that one child was born of the marriage, who is now about 15 years old, residing with the plaintiff; that the defendant is and has been a resident of Utah for five years, and owns real estate and personal property in this State; that during the year 1883, the defendant willfully abandoned and deserted the plaintiff, and has continued such desertion and abandonment against her will, and has failed to provide her with the necessaries of life during that period, although able to do so. The plaintiff in her complaint prays for the allowance of alimony, attorney's fees, and expenses of suit.

The defendant answered admitting the marriage in Colorado, July 1, 1881, but denies that the parties are now husband and wife; denies that the plaintiff is a resident of Utah; denies the desertion of the plaintiff, as alleged in the complaint; denies that the parties lived together as husband and wife to exceed one month from the date of the marriage; denies that the child was born of said marriage, and alleges that in August, 1881, the plaintiff deserted and abandoned the defendant without cause, and left the abode of defendant, and refused to return or live with him as his wife, and that such desertion continued until he was divorced from her in March, 1886; that on the 8th day of March, 1886, he obtained a decree of divorce from the plaintiff in the county court of San Juan, Colo., in an action in which the defendant herein was plaintiff, and the plaintiff herein was defendant; that said court had full jurisdiction in said case, and said decree was entered of record in said court dissolving the bonds of matrimony then existing between them, and released the defendant from any and all obligations growing out of said marriage relations; that said decree stands in full force, and has never been reversed; that the plaintiff had full knowledge and notice of said decree; that the alleged cause of action is barred by Sec. 3150, C. L. U., 1888; that the plaintiff is guilty of laches, and that the defendant in reliance upon said decree of divorce contracted a marriage, and is now the lawful husband of another woman.

Upon the hearing of the case it appeared that while the parties lived in Colorado, and after their separation, the defendant filed his complaint against the plaintiff for divorce upon the ground of plaintiff's desertion of him, and that upon the 8th day of March, 1886, a decree of divorce was granted to the defendant, Frank Hoagland. Mr. Hoagland removed from Silverton to Durango, Colo., in 1888, where he lived two years, after which he came to Salt Lake City, Utah and in 1895 he was married to another woman. In 1886 Mrs. Hoagland brought a suit against Mr. Hoagland in La Plata County, Colo., for maintenance. This suit was afterward dismissed. Shortly after this she was informed by Mr. Hoagland of his decree of divorce obtained from her in San Juan County. In May, 1889, Mrs. Hoagland commenced a second suit for divorce from Mr. Hoagland, in Lake County, Colo. Summons was personally served in this case. This case was dismissed November 20, 1894. On November 22, 1894, Mrs. Hoagland commenced a third suit for divorce in Lake County, Colo. Mr. Hoagland was then living in Salt Lake City, and the summons was served upon him here. This last suit was since dismissed. In the fall of 1897, Mrs. Hoagland came to Salt Lake City and commenced the present action for support and maintenance. Upon the trial of this case the court dismissed the action, and the plaintiff appealed.

Plaintiff attacks the decree and judgment awarding Frank Hoagland a divorce on the ground that it is void, and that the court had no jurisdiction of the subject matter of the action or the person of the defendant. The first ground alleged is that Sec. 485 of the statutes of Colorado, of 1883, provides that "in all actions for divorce, the petition, or bill of complaint, shall aver that plaintiff does not ask or seek alimony in excess of the...