Rose v. Rose

• Citation: 145 S.W.2d 773,176 Tenn. 680
• Parties: ROSE v. ROSE.
• Decision Date: 18 December 1940
• Court: Supreme Court of Tennessee

145 S.W.2d 773

176 Tenn. 680

ROSE v. ROSE.

Supreme Court of Tennessee.

December 18, 1940

Appeal from Chancery Court, Blount County; Ben Robertson Chancellor.

Suit by Ella Rose against Mary Lucy Rose to set aside as fraudulent a divorce decree entered in 1925. From a decree sustaining defendant's plea in abatement, the complainant appeals.

Affirmed.

Goddard & Gamble, of Maryville, and R. L. Phillips, of Robbinsville N. C., for complainant.

W. O Lowe, of Knoxville, for defendant.

GREEN Chief Justice.

From a decree sustaining defendant's plea in abatement the complainant has appealed to this court.

The bill sets out that the complainant, Ella Rose, was married to W. Matt Rose in the State of North Carolina in 1905 and that she has been a resident of that State ever since. That in July, 1925, the said Matt Rose came from North Carolina to Blount County, Tennessee, and filed a divorce bill against complainant in which he falsely and fraudulently alleged that he had been a resident of Blount County, Tennessee, for more than two whole years prior to the date of the filing of the bill; that he further falsely and fraudulently alleged that complainant had been guilty of willful and malicious desertion without a reasonable cause for more than two years and he prayed for an absolute divorce. Upon this bill publication was made for defendant and on October 20, 1925, a pro confesso decree was entered, based on said bill and publication, and on the same day a decree was entered in the circuit court of Blount County awarding to the said Matt Rose an absolute divorce from the complainant for the causes stated in his bill.

The complainant further alleges that her said husband had never become a resident of Tennessee, had all the while been a citizen and resident of the State of North Carolina, was a resident and citizen of North Carolina when his said divorce bill was filed and his decree obtained, and that accordingly said divorce decree so obtained against her was by a court without jurisdiction as well as fraudulent and void.

The bill goes on to say that about 1927 or 1928 the said Matt Rose moved to the State of Georgia where, according to plaintiff's information, he undertook to marry the defendant, Mary Lucy Rose, and that said Matt Rose died in Georgia in January or February, 1938.

The prayer of complainant's bill is that the divorce proceedings in the circuit court of Blount County by her husband be adjudged fraudulent and the decree therein rendered set aside. That defendant Mary Lucy Rose be brought before the court by publication and required to answer.

As heretofore stated, the defendant, Mary Lucy Rose, filed a plea in abatement, setting out that the complainant was a resident of the State of North Carolina, and that she (defendant) was a resident of the State of Georgia, as shown from the allegations of the bill, and challenging the jurisdiction of the court below to proceed against her (defendant) by publication and without any service of process.

Upon the facts appearing on complainant's bill, we think the chancellor properly sustained the plea aforesaid.

While there is some dissent, we think the weight of authority is that a decree of divorce may be set aside for want of jurisdiction or fraud, even though the party so obtaining such decree be dead, if property rights are involved. Lawrence v. Nelson, 113 Iowa 277, 85 N.W. 84, 57 L.R.A. 583; Wood v. Wood, 136 Iowa 128, 113 N.W. 492, 12 L.R.A.,N.S., 891, 125 Am.St.Rep. 223; Johnson v. Coleman, 23 Wis. 452, 99 Am.Dec. 193; Bomsta v. Johnson, 38 Minn. 230, 36 N.W. 341; Brown v. Grove. 116 Ind. 84, 18 N.E. 387, 9 Am.St.Rep. 823. Other like cases are collected in notes, 57 L.R.A. 588; 1 L.R.A., N.S., 551; 44 L.R.A.,N.S., 505; Ann.Cas.1913B, 370.

There is nothing to the contrary in Owen v. Sims, 3 Cold. 544, 43 Tenn. 544. That was a proceedings under section 10460 of the Code giving nonresident defendants not served with process time to challenge a decree against them obtained on publication. It was held that this statute was not applicable to decrees in divorce cases, which could only be reviewed on appeal. Code, § 9039.

The power of a court of equity, however, in this State to set aside a divorce decree for fraud is well established. Wills v. Wills, 104 Tenn. 382, 58 S.W. 301.

If, therefore, the complainant's former husband, now deceased, had left property in Tennessee that the court could have reached, her bill could have been maintained. It does not appear, however, that decedent left any property in this State. On the contrary, it was stated at the bar that the only property right which was involved was in Georgia--workman's compensation, or something of the kind. Therefore, a decree made by this court against the defendant, with no personal service upon her or appearance by her, would be wholly without effect as respects this property right.

If the former husband of the complainant, W. Matt Rose, were alive, there is considerable authority for the conclusion that the court below might have entertained complainant's bill and brought him in by publication. This on the theory that the marriage status is a res and the res having been submitted to the court in the divorce bill, some sort of res remains in the jurisdiction, and the court was authorized to deal with this res. Sustaining this view are State v. District Court et al., 66 Mont. 496, 214 P. 85, 33 A.L.R. 464; Everett v. Everett, 22 A.D. 473, 47 N.Y.S. 994, and other cases relied on by complainant.

In the case before us, we see no res with which the court can deal. There is no property...