Lamar v. Houston
| Citation | 184 So. 293,183 Miss. 260 |
| Decision Date | 07 November 1938 |
| Docket Number | 33306 |
| Court | United States State Supreme Court of Mississippi |
| Parties | LAMAR v. HOUSTON |
APPEAL from chancery court of Bolivar county, HON. R. E. JACKSON Chancellor.
(Division B.)
1 JUDGMENT.
Ordinarily a judgment or decree which has been rendered because of fraud on the jurisdiction of the court may be impeached either by direct or collateral attack, but the person seeking to impeach such judgment or decree may be denied relief on account of laches.
2 JUDGMENT.
Generally the acts for which a court of equity may, on account of fraud, set aside or disregard a judgment or decree on collateral attack between the same parties, have relation only to fraud which is extrinsic or collateral to the matter tried by the first court, and not to fraud in the matter on which the judgment was rendered.
3. JUDGMENT.
Freedom from laches is generally a prerequisite to the granting of equitable relief from a judgment or decree not void on its face.
4. JUDGMENT.
A defendant, who has been served with notice for the time required by law of the pendency of a suit and is afforded an opportunity to appear and raise the question of jurisdiction and fails to do so but acquiesces in the judgment or decree for such length of time as to work prejudice to the rights of third persons who may have acted on the faith of the validity of such judgment or decree, may be denied equitable relief from such decree or judgment.
5. JUDGMENT.
One who seeks, after the expiration of period for appeal or bill of review, to attack and reopen a decree, should not only show want of knowledge of the proceeding complained of, and of all circumstances calculated to put one on inquiry to lead to knowledge, but should also exclude the conclusion of inexcusable ignorance as to the suit.
6. EQUITY.
The statute of limitations has no application to the doctrine of laches.
7. DIVORCE.
Where wife, after obtaining divorce decree which affirmatively disclosed that court which rendered decree had jurisdiction of parties and subject matter, remarried, first husband, after more than one year and three months had expired from rendition of decree, could not impeach decree on ground that wife perpetrated fraud on jurisdiction of court, since suit to set aside the divorce decree would render wife's second marriage and her living with her second husband illegal and in violation of the laws and would render illegitimate the children, if any, born of the second marriage.
HON. R. E. JACKSON, Chancellor.
Suit for divorce by T. R. Lamar against Gertrude Bonner (Mrs. Fred) Houston. From an adverse decree, complainant appeals. Affirmed.
Affirmed.
Hubert S. Lipscommb, of Jackson, and A. T. Patterson and E. L. Lamar, both of Calhoun City, for appellant.
It is, of course, wholly unnecessary for us to call the court's attention to the fact that the demurrer admits the truthfulness of every material allegation in the bill of complaint. In passing on this case this court must assume all of these allegations to be absolutely true. If the allegations of appellant's bill are true as this court must assume they are, the decree of the Chancery Court of Quitman County, Mississippi, is void.
We are not unmindful that in many cases a substantial compliance with a prescribed form of affidavit is sufficient. Divorce cases, however, constitute an exception to this general rule. There must be a literal compliance.
Amis, Divorce and Separation in Mississippi, page 349; Section 1417, Code of 1930.
The appellee alleged in her Quitman County bill that she had been a resident of that county all of her life and that she and the appellant separated in that county. The bill of complaint herein sets up that these allegations were absolutely false, that appellee knew them to be absolutely false and made them with the studied design and intent to perpetrate a fraud on the jurisdiction of the Chancery Court of Quitman County, Mississippi, which, had the true facts touching the residence of the parties and place of separation been alleged, would not have assumed jurisdiction of said cause.
As stated by Judge Amis in his "Divorce and Separation in Mississippi:" The proceeding in Quitman County was a fraud on the jurisdiction of the court, and any decree rendered therein was a nullity and the appellant was entitled to ignore the whole thing.
The decree of the Chancery Court of Quitman County may be collaterally attacked.
Plummer v. Plummer, 37 Miss. 185; Freeman on Judgments (3 Ed.), sec. 117; Watts v. Watts, 123 Miss. 812, 86 So. 353.
It is well settled in this state that judgments and decrees procured by fraud are void both in equity and at law.
McCraney v. N. O. & N.E. R. Co., 128 Miss. 248, 90 So. 881; Christian v. O'Neal, 46 Miss. 669.
We wish to stress the fact that the decree in the Quitman County case is not merely voidable or irregular, but if the allegations of the bill of complaint herein are true, and they must be so taken for the purposes of the demurrer, the said decree is absolutely void.
Therbald v. Deslonde, 93 Miss. 208, 46 So. 712.
The principle is well settled in this state that, where a decree is absolutely null and void, it is subject to attack anywhere collaterally or otherwise.
Paepcke-Leicht Lbr. Co. v. Savage, 137 Miss. 11, 101 So. 709; Amis, Divorce and Separation in Mississippi, sec. 304, page 429.
We are not unmindful that under Section 159 of the Constitution of 1890 the Chancery Court is vested with full jurisdiction in matters of divorce and alimony. "But the circumstances under which, the causes for which, and the manner in which such jurisdiction may be exercised is wholly prescribed by statute." (Amis, page 430).
The Legislature has specifically prescribed the place where the bill must be filed. Under the allegations of the bill of complaint herein, the appellee's bill could not possibly have been filed in the Chancery Court of Quitman County, Mississippi. Consequently that court never acquired any territorial jurisdiction, and all proceedings had and done in that cause were utterly void.
Roberts & Smith, of Cleveland, for appellee.
Exclusive jurisdiction of all divorce matters is conferred upon the Chancery Court by the Constitution, and Section 1417, Code 1930, fixes the place in which the bill must be filed.
The bill alleged that complainant (appellee here) "is a citizen and resident of Quitman County and has been all of her life and that the defendant (appellant here) is working for the Mississippi State Highway Department and in said employment is in various counties of the State of Mississippi, his whereabouts being uncertain, and at this particular time your complainant believes that he is in Grenada County, Mississippi." The bill further alleged "that on or about the 20th day of June, 1936, the complainant separated from defendant in Quitman County, Mississippi, . . ."
We think that there can be no doubt but that the bill does not specifically state that the defendant was a resident of Quitman County at the time of the separation of the parties herein but it does so allege that complainant had been a resident of Quitman County all of her life which is equivalent to an allegation that the defendant had been also a resident of that county since the marriage of the parties, for unless the husband was a resident of Quitman County the wife could not as a matter of law continue to reside there, for after her marriage to appellant her residence is fixed by law as the residence chosen by the husband. The fact that the bill alleged that defendant's employment carried him into many counties in the state would not affect his residence, for residence is a matter of intention.
Amis, Divorce and Separation, sec. 241; Hancock v. Reedy, 180 So. 81; Bilbo v. Bilbo, 177 So. 772.
This is a collateral attack. In distinguishing between direct and collateral attacks on decrees, Judge Amis in his Divorce and Separation in Mississippi, section 304, said:
2 Words and Phrases, pages 1249 and 1250; Hester v. Hester, 103 Miss. 13; Cully v. Shirk, 31 Am. St. Rep. 414.
The decree not shown on its face to be void is not subject to collateral attack.
Kirby v. Kent, 160 So. 569; Robinson v. Robinson, 138 P. 288.
Although judgment is obtained by false testimony, the defendant is not entitled to relief where he has been served with process, and neglects to appear and defend, and suffers judgment to be rendered by default.
Cairo & St. L. R. Co. v. Holbrook, 92 Ill. 297; South Haven and Eastern Ry. Co. v. Culver, 122 N.W. 95.
A divorce will not be vacated on the ground that it was based on perjured testimony knowingly procured by the libellant, after a marriage has been entered into on the faith of the decree, and a child born of the marriage.
Zeitlin v. Zeitlin, 202 Mass. 205, 86 N.E. 762; 23 L.R.A. (N.S.) 564.
The bill shows on its face that appellant had actual knowledge by service of process of the suit and when a person stands icily by after process has been served upon him and permits judgment to be entered against him, he cannot have the decree set aside in any collateral proceeding.
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Rives v. Franklin Life Ins. Co., 85-4778
...law, an interested party can also collaterally attack a chancery court decree on the basis of extrinsic fraud. LaMar v. Houston, 183 Miss. 260, 184 So. 293 (1938); see also Jones v. Goolsby, 218 Miss. 847, 68 So.2d 89, 93 (1953). However, the district court decision was not based on fraud. ......
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...relates to the rights of innocent parties, the other relates to the interest that New Mexico has in the marital status. In Lamar v. Houston, 183 Miss. 260, 184 So. 293, a divorce decree was collaterally attacked on the basis that plaintiff in the divorce action had perpetrated a fraud on th......
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