Musgrove v. Musgrove

• Decision Date: 11 October 1957
• Docket Number: No. 19827,19827
• Citation: 100 S.E.2d 577,213 Ga. 610
• Parties: H. P. MUSGROVE v. Patricia Underwood MUSGROVE.
• Court: Georgia Supreme Court

Page 577

100 S.E.2d 577

213 Ga. 610

H. P. MUSGROVE v. Patricia Underwood MUSGROVE.

No. 19827.

Supreme Court of Georgia.

Oct. 11, 1957.

Rehearing Denied Nov. 8, 1957.

Peter Zack Geer. Colquitt, for plaintiff in error.

Charles H. Kirbo, Custer & Kirbo, Bainbridge, for defendant in error.

Syllabus Opinion by the Court

HAWKINS, Justice.

1. Article 6, section 14, paragraph 1 of the Constitution (Code, Ann., § 2-4901) provides that 'Divorce cases shall be brought in the county where the defendant resides, if a resident of this state,' and this court has repeatedly held that these provisions of the Constitution are mandatory and exhaustive, and have no qualification which authorizes jurisdiction to be conferred by consent or otherwise; and that, where both parties are residents of this State, a divorce is invalid unless the suit is brought in the county where the defendant resides. Watts v. Watts, 130 Ga. 683, 61 S.E. 593; Moody v. Moody, 195 Ga. 13, 14, 22 S.E.2d 836, and cases there cited. While Code, § 110-709 provides that 'The judgment of a court having no jurisdiction of the person or subject-matter, or void for any other cause, is a mere nullity, and may be so held in any court when it becomes material to the interest of the parties to consider it,' and Code, § 110-701 provides that 'A void judgment may be attacked in any court and by any person,' these Code sections must be construed in the light of equally well established principles of law and equity to the effect that 'He who would have equity must do equity' (Code, § 37-104); that he who comes into a court of equity with unclean hands must be denied relief (McKinney v. Atkinson, 209 Ga. 49, 70 S.E.2d 769, and cases there cited); that one will not be permitted to take advantage of his own wrong (Sheridan v. Sheridan, 153 Ga. 262, 111 S.E. 906; Clifton v. Dunn, 208 Ga. 326, 66 S.E.2d 735; Fuller v. Fuller, 211 Ga. 201, 202, 84 S.E.2d 665); and that one will not be permitted to trifle with the courts. Merritt v. Merritt, 210 Ga. 39, 77 S.E.2d 438.

2. In McConnell v. McConnell, 135 Ga. 828, 70 S.E. 647, it was said that the question to be decided was whether the defendant would be permitted, in a court of equity, to attack a decree for divorce against him on the ground that when the suit was filed he did not reside in Fulton County, when an entry on the petition in the following language was signed by him: 'Service of the foregoing petition is acknowledged. Jurisdiction of the superior court of Fulton county is recognized.' The petition seeking to set aside that divorce decree alleged that the husband had signed such acknowledgment at the special instance and request of the wife, who knew that he was not a resident of the county, and in an effort on her part to give jurisdiction of the case to the Superior Court of Fulton County, and that the acknowledgment of service was signed by the husband under the belief that said proceeding could be brought in said court, and that the court had jurisdiction thereof; that he did not read the allegation of the petition as to his residence, and did not intend by such acknowledgment to admit that such allegation was true. It was there held: 'The husband could not, in a court of equity, have the verdicts and decree for divorce set aside on the ground that he did not reside in Fulton county when the petition of his wife for divorce was filed.' See also, to the same effect, Fuller v. Curry, 162 Ga. 293, 133 S.E. 244; Davis v. Davis, 191 Ga. 333, 11 S.E.2d 884; Fender v. Crosby, 209 Ga. 896, 76 S.E.2d 769; Merritt v. Merritt, 210 Ga. 39, 77 S.E.2d 438; Phillips v. Phillips, 211 Ga. 305, 309, 85 S.E.2d 427; Starling v. Green, 211 Ga. 369, 86 S.E.2d 100.

(a) What is here ruled is not in conflict with the following cases relied upon by counsel for the defendant in error: Watts v. Watts, 130 Ga. 683, 61 S.E. 593; Jones v. Jones, 181 Ga. 747, 184 S.E. 271; Axtell v. Axtell, 181 Ga. 24, 181 S.E. 295; Young v. Young, 188 Ga. 29, 2 S.E.2d 622; Johnson v. Johnson, 188 Ga. 800, 4 S.E.2d 807; Haygood v. Haygood, 190 Ga. 445, 9 S.E.2d 834, 130 A.L.R. 87; Moody v. Moody, 195 Ga. 13, 22 S.E.2d 836; Christopher v. Christopher, 198 Ga. 361, 31 S.E.2d 818; Cohen v. Cohen, 209 Ga. 459, 74 S.E.2d 95; Harmon v. Harmon, 209 Ga. 474, 74 S.E.2d 75. Each of those cases has been carefully examined, and each is distinguishable upon its facts. But if it could be said that anything held in either of those cases (other than the case of Watts v. Watts, supra, which is distinguishable upon its facts) is in conflict with the decision of this court in McConnell v. McConnell, 135 Ga. 828, 70 S.E. 647, it must yield to that older full bench decision, which is controlling here.

3. The plaintiff's equitable petition, which seeks to have set aside a judgment and decree of Seminole Superior Court, awarding a divorce and the custody of their minor child to her husband, and removing her disabilities, alleges that--on the representations of her husband that he wanted a divorce so he could enter the air force, which he could not do unless he was single, and that it would be...