Milner v. Gatlin

• Decision Date: 25 April 1919
• Docket Number: (No. 2072.)
• Citation: 211 S.W. 617
• Parties: MILNER v. GATLIN et al.
• Court: Texas Court of Appeals

211 S.W. 617

MILNER v. GATLIN et al.

(No. 2072.)

Court of Civil Appeals of Texas. Texarkana.

April 25, 1919.

Rehearing Denied May 8, 1919.

Appeal from District Court, Lamar County; A. P. Dohoney, Judge.

Action by C. W. Milner against Mary F. Gatlin and another. Judgment for defendants, and plaintiff appeals. Affirmed.

Appellant and appellee Mary F. Gatlin were husband and wife prior to May 18, 1911, when they were divorced by a decree of a district court for Dallas county. Lucile, a girl 9 or 10 years old, was a child of the marriage between appellant and said appellee. This was a suit by appellant against said appellee and appellee John Gatlin, whom she married after she was divorced from appellant, for the custody of said child. In his petition for the writ of habeas corpus appellant alleged that the decree of said district court of Dallas county awarded to him the exclusive care and custody of the child. He further alleged that said Mary F. Gatlin afterward kidnapped the child in the state of Georgia, where she (the child) and he then resided, and removed her to Lamar county, Tex., where, he alleged, said Mary F. Gatlin and her husband were harboring and restraining her. In their answer to said petition appellees alleged that on August 20, 1912, the decree of the Dallas county district court, in so far as it awarded the custody of the child to appellant, was by that court "revoked, annulled and held for naught," and that that court then rendered and entered a decree awarding the care, custody, and control of the child to appellee Mary F. Gatlin. A copy of said decree (of August 20, 1912) was attached to and made a part of said answer. With reference to that decree appellant, in a supplemental petition, alleged as follows:

"It is true that there was a so-called amendatory judgment entered in cause No. 9255. Milner v. Milner, in August, 1912, but that said judgment was null and void and of no effect, for the reason that at said time and for a long time prior thereto the plaintiff, C. W. Milner, and his child, Lucile Arza Milner, were actual, bona fide, and legal residents and inhabitants of the state of Georgia, and had so been since immediately after the entering of the judgment of divorce between the said Milner and his wife, Mary, in 1911, out of which suit judgment was rendered, giving him the custody of said minor, and in no manner denying him the right to move and make his habitation wherever he saw fit, and that immediately after the entering of said judgment he moved to Georgia and made his domicile therein, and that no legal service was ever had upon him of the motion of the defendant, Mary F. Milner, to reform or modify the said 1911 judgment, and, in fact, the Sixty-Eighth judicial district court of Dallas county was without jurisdiction to change or modify such judgment, since it was in personam, and at another term, and when the plaintiff was not a resident of Texas nor of said judicial district. Said motion to reform so showing and praying for service of notice upon him in the following words: `The said C. W. Milner upon whom service is desired resides in Wilner, Pike county, Ga., to which place it is desired that notice issue'—and said notice was handed plaintiff by the sheriff of Pike county, Ga., in said Pike county, Ga., and not otherwise nor elsewhere was service had upon the plaintiff."

An exception interposed by appellees to the part of the supplemental petition set out above, on the ground that same was "but an attempt," quoting, "to collaterally impeach a judgment rendered by a domestic court of general jurisdiction over the subject-matter by pleading matters dehors the record," was sustained by the trial court; and, appellant having agreed that if said exception was sustained he "would have no cause of action," said court rendered judgment denying him the relief he prayed for. The appeal is from that judgment.

Wm. H. Atwell, of Dallas, for appellant.

A. P. Park and Moore & Hardison, all of Paris, for appellees.

WILLSON, C. J. (after stating the facts as above).

The trial court treated the part of the supplemental petition set out in the statement above to which he sustained an exception, as an offer by appellant to show by proof aliunde the record in the divorce case and the record of the proceedings to modify the judgment rendered in said case May 18, 1911, that the district court of Dallas county was without power to modify said judgment as he undertook to do by his order of August 20, 1912. That appellant acquiesced in that view of his said pleading is shown by the fact that he makes no complaint here of the action of said court in dismissing the suit. The contention here is that the trial court erred when he sustained said exception. Whether he did or not, viewing the pleading as he viewed it, we think depends upon the answers which should be made to questions hereinafter stated. If the answer to any one of those questions should be in the affirmative, we think the exception should have been overruled.

1. One of the questions presented by allegations in the part of the supplemental petition in question may be stated as follows: Was the district court of Dallas county without power, at a term subsequent to the one at which same was rendered, to so modify its decree of May 18, 1911, as to transfer the care and custody of the minor from appellant to appellee Mrs. Gatlin?

In Hall v. Whipple, 145 S. W. 308, the Court of Civil Appeals for the First District approved the following as a correct statement of the law:

"The right to and custody of a minor is a question over which courts of equity have jurisdiction, and an order of the district judge in relation thereto is always subject to modification or change upon a proper showing."

In Plummer v. Plummer, 154 S. W. 598, decided by this court, it was said:

"The general doctrine is that the jurisdiction of the court over the custody and support of minor children in divorce cases where the divorce is granted is a continuing one, and the court may modify or alter its order for custody or maintenance originally made as new issues or the changed circumstances of the parties may arise."

Construing the statement just quoted from the Plummer Case as a holding that the power to modify such an order was an exclusive one, in that no other district court than the one granting the divorce could exercise it, the Court of Civil Appeals for the Fourth District challenged its correctness in Gazell v. Garcia, 187 S. W. 410. Nevertheless, that (the Gazell) Case supports the ruling of the trial court in this one, for it was there held that any district court has power, if the welfare of the minor, because of changed conditions, requires it, to so modify such an order as to take the minor from the custody of one to whom he was awarded in divorce proceedings and place him in the custody of another person. As the writ of error applied for in the Gazell Case was refused, it is fair to assume that the Supreme Court concurred in the conclusion reached therein.

On the authority of the cases mentioned, and Wilson v. Elliott, 96 Tex. 472, 73 S. W. 946, 75 S. W. 368, 97 Am. St. Rep. 928, Ex parte Reeves, 100 Tex. 617, 103 S. W. 478, and Smith v. Long, 181 S. W. 478, we think the question stated should be answered in the negative.

2. Another question presented by the ruling of the trial court may be stated as follows: Assuming that service on appellant in this state of notice of the motion to so modify said decree of May 18, 1911, was necessary to the exercise of such power by the Dallas county district court, did it appear that appellant was entitled in this proceeding to deny that such service was had on him?

The decree of August 20, 1912, contained a recital that "it appeared to the court that proper issuance and service of citation was had upon the said C. W. Milner, and that the said C. W. Milner, though duly cited to appear, came not," etc.

In 23 Cyc. 1086, the rule believed to be applicable is stated as follows:

"In the case of a judgment of a domestic court of general jurisdiction the great majority of the decisions sustain the rule that its recitals concerning the service of process or the other facts on which its jurisdiction is founded import absolute verity and cannot be contradicted or disproved in a collateral proceeding by any extrinsic evidence."

There is no doubt the proceedings resulting in the judgment appealed from were "collateral" within the meaning of the rule (23 Cyc. 1062 et seq.; Crawford v. McDonald, 88 Tex. 626, 33 S. W. 325); and hence there also is no doubt (unless, because of the doctrine announced in Pennoyer v. Neff, 95 U. S. 723, 24 L. Ed. 565, the rule does not apply to a defendant who was in fact a nonresident of the state at the time the suit against him was commenced and while it was being prosecuted) that appellant was not entitled to contradict the recital in the judgment as modified by proving by evidence dehors the record that valid service of notice of the motion was not had on him.

In Martin v. Burns, 80 Tex. 676, 16 S. W. 1072, the judgment in question was one for money. It was attacked as void because against a nonresident of the state on service on him of a citation by publication only. It appeared from the record that the citation by publication was on affidavit by the plaintiff that the residence of the defendant in the judgment was unknown. It did not affirmatively appear from anything in the record that the defendant was a nonresident of the state. It was held that the validity of the judgment could not be impeached collaterally by proof aliunde showing that the defendant in fact was a nonresident. The court said:

"This conclusion is not in conflict with the doctrine of Pennoyer v. Neff, but is based entirely upon the absolute presumptions which the law indulges in support of a judgment of domestic court of general jurisdiction and of the verity of its records. It must now be regarded as...