Logsdon v. Logsdon

• Decision Date: 01 July 1924
• Parties: LOGSDON v. LOGSDON.
• Court: Kentucky Court of Appeals

263 S.W. 728

204 Ky. 104

LOGSDON v. LOGSDON.

Court of Appeals of Kentucky.

July 1, 1924

Appeal from Circuit Court, Edmonson County.

Action by Emily J. Logsdon against William H. Logsdon. Judgment for plaintiff, and defendant appeals. Reversed, with directions to dismiss petition.

Milton Clark, of Brownsville, for appellant.

M. M Logan and Thomas, Thomas & Logan, all of Bowling Green, and B. M. Vincent, of Brownsville, for appellee.

THOMAS J.

The appellant and defendant below, William H. Logsdon, and the appellee and plaintiff below, Emily J. Logsdon, were married on November 13, 1906, and lived from that time until the latter part of the year 1917 in Edmonson county, Ky. where they both lived at the time of their marriage and long prior thereto. There was born to them three children. Defendant either by his voluntary action or by the draft, became a soldier in the American Army in the World War, and his wife the plaintiff, experienced great difficulties in providing the means of support for herself and children while her husband was in the Army. After the war was over and defendant was discharged he manifested no disposition to resume his place in the family, although the parties lived together for a short while, when he permanently departed and finally located in McLean county, Ky. where his father resided, and after living at the latter's home for more than a year he instituted a suit in the McLean circuit court against his wife, the plaintiff herein, to obtain a divorce from her on the ground that she had abandoned him and refused to live with him for more than twelve months without his fault. In his petition he alleged and swore to it that his wife was a nonresident of the state and was absent therefrom, and that she had been away from the state for more than four months, and that he did not know the place of her residence, nor the place at which a post office was kept where she might be found. On that affidavit the court appointed a corresponding attorney who made the usual report in such cases, and after the taking of very skimpy proof by members of defendant's family, the court on submission granted the divorce, but adjudged nothing therein with reference to alimony.

Plaintiff herein, who was the defendant in that action, knew nothing of the McLean county judgment until some months thereafter, when, ignoring it on the ground that it was void ab initio, she filed this action in the Edmonson circuit court against defendant wherein she set out grounds for divorce, and in her petition she averred the facts with reference to the McLean circuit court proceedings and charged that defendant's affidavit therein for the obtention of constructive process against her was false and known to be false by him when he made it, and that in doing so he committed perjury, and that because thereof that court did not obtain jurisdiction of her person so as to give validity to the divorce judgment it subsequently rendered. She prayed for alimony and all other equitable relief to which she was entitled.

An answer filed by defendant denied the averments of the petition and affirmatively alleged that the McLean circuit court had jurisdiction to grant the divorce, and that the judgment therein rendered was valid, but if not that it could not be collaterally attacked in the Edmonson circuit court and in no event could it be set aside because, being one granting a divorce, it changed the status of the parties which had in the meantime become settled beyond all methods of attack as alleged by defendant having married another woman, followed by the birth of a child. Before filing the answer defendant interposed both a special and general demurrer to the petition, both of which were overruled with exceptions. The reply denied the averments of the answer with some other affirmative allegations which were denied of record. Proof was taken, and upon submission the court adjudged that the McLean county judgment was void for the reasons averred in the petition which the court found to be true, and granted plaintiff alimony, and from that judgment defendant prosecutes this appeal.

It will be seen that there is presented for our determination two principal questions: (1) Whether a judgment of a court of general jurisdiction is void because of false and fraudulent statements by the party in whose favor it was rendered affecting the jurisdiction of the court over the person of his adversary, by which it was made to appear that the court had such jurisdiction when the facts were that it did not, which, reduced to its last analysis and differently stated, is whether it is competent in any event to prove such invalidating and vitiating facts by testimony aliunde the record, and in opposition to its recitals; and, if that question should be answered in the affirmative as to either a direct or collateral attack; then (2) will a judgment of divorce be set aside and held to be void because of such false, fraudulent, and perjured statements made, as we have seen, for the purpose of obtaining jurisdiction of the adversary's person.

1. At the outset we feel that it should be stated that since an opinion of a court should be strictly confined and relate to the facts contained in the record before it, we will not undertake to notice the various rules, either at common law or under our Code, relative to what constitutes a direct or a collateral attack of a judgment either of a court of original and co-ordinate jurisdiction, or of one of an inferior jurisdiction; nor will we engage in a discussion of the rules relative to presumptions in favor of the judgment attacked where it is a collateral one, but will proceed to dispose of the questions presented in the light of our Code provisions as heretofore interpreted by this court.

It is insisted, and we think it is true, that this case brought in the Edmonson circuit court is beyond question a collateral attack of the judgment of the McLean circuit court, and it being fair upon its face cannot be set aside by evidence aliunde that record, although such evidence might develop the fact that the court did not have jurisdiction to render it. Until it should be set aside by some recognized direct proceeding, it must be treated by other courts as valid. We are aware that there are opinions from this court, of which the cases of Bramlett v. McVey, 91 Ky. 151, 15 S.W. 49, and Robinson v. Carlton, 123 Ky. 419, 96 S.W. 549, are examples, where it was held that the circuit court, which is one of original and general jurisdiction, might enjoin the enforcement of judgments in inferior courts although fair upon their face and where the record showed the requisite jurisdictional facts, yet there was no effort even in those cases to set aside and expunge from the record the attacked judgment, since the proceeding in the circuit court only attempted to prevent the execution of those judgments by restraining the party in whose favor they were rendered, or some ministerial officer whose duty it was to execute them from doing so, and which is entirely a different question from that of vacating in its entirety an alleged void judgment. This difference, as to the purposes and effects of the two classes of procedures, is clearly pointed out in 15 R. C. L. 725, 726, par. 179. No such relief is sought in this case, since the very purpose of this action in the Edmonson circuit court is to utterly ignore the McLean county judgment and not to enjoin or prevent either the defendant (plaintiff therein) or any administrative officer from executing or carrying it out. The purpose is to obtain original relief to plaintiff herein and to allow her to relitigate the differences between her and her husband as though the McLean county judgment had never in fact been rendered. In short, it is sought by this action to expunge from the record of the McLean circuit court the judgment therein attacked, and this proceeding being a collateral attack of that judgment by having been brought in a different court must be treated as any other collateral attack, and it appears to be the universal rule that the attacking proceedings cannot prevail where the record of the first judgment shows affirmatively that the court had jurisdiction both of the person and of the subject-matter.

It might be insisted, however, that since this court has held in the case of George v. George, 190 Ky. 706, 228 S.W 408, and other cases therein referred to, that a proceeding, the sole purpose of which is to recover maintenance or alimony, is a transitory one, that the Edmonson circuit court would have jurisdiction of this case to the extent of granting plaintiff a judgment for alimony; but the trouble with that contention is that the cases referred to do not authorize the maintenance of such an action, in a different court, after there has been a judgment of divorce in a cause to which the same parties were litigants in another court of co-ordinate jurisdiction. In the George Case, there had never been a prior divorce proceeding filed by the husband or the wife, and consequently there existed no prior judgment of divorce by any court. In the case of Hughes v. Hughes, 162 Ky. 505, 172 S.W. 960, the action was not for the recovery of alimony and maintenance, but was brought upon a contract which the husband entered into with his wife after he had fraudulently obtained a divorce from her and to prevent her from opening up that judgment under the provisions of section 414 of the Civil Code for the purpose of obtaining an allowance of alimony. Neither does the opinion in the case of Auxier v. Auxier, 155 Ky. 174, 159 S.W. 678, announce a different doctrine, since in that case it was expressly held that another co-ordinate court of general jurisdiction from the one rendering the...