Schulze v. Schulze
| Decision Date | 17 November 1919 |
| Docket Number | 1390. |
| Citation | 101 S.E. 183,149 Ga. 532 |
| Parties | SCHULZE v. SCHULZE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Where in the superior court, after two concurrent verdicts, a total divorce was decreed in favor of one who was alleged to be "of" the county in which the suit was pending, and "a bona fide resident of the state of Georgia," such judgment, if regular upon its face, cannot be collaterally attacked in another proceeding, in a different county, on the ground that some of the allegations in the petition were untrue and fraudulent.A judgment of the superior court, apparently regular and legal, can, after the time for excepting thereto has expired, be set aside only by instituting a proper proceeding for that purpose in the court wherein such judgment was rendered.
Such a decree of total divorce as is just referred to was attacked in a proceeding for alimony.According to the record in the case before usthe plaintiff in the divorce suit filed therewith an affidavit that the defendant did not reside in this state, but was a resident of the state of Ohio.The sheriff's return was to the effect that "the defendant does not reside in the county of Fulton or in the state of Georgia."Thereupon the court ordered service by publication.Sufficient time intervened between the judge's order and the first verdict for the required publication, but it does not affirmatively appear that the judge did, as required by statute, pass an order before the trial, reciting that such service had been properly perfected.Held,the court being one of general and competent jurisdiction, it will be presumed that all necessary jurisdictional facts appeared.
On review we are of the opinion that the case of Hood v Hood,143 Ga. 616, 85 S.E. 849, was correctly decided and the request to overrule that decision is denied.
Applying the principles above announced, it was error to admit the record of the divorce proceedings in Fulton county as a basis for a collateral attack on the judgment rendered therein.
Error from Superior Court, Richmond County; H. C. Hammond, Judge.
Suit by B. H. Schulze against G. A. Schulze for temporary and permanent alimony for maintenance of herself and child.Judgment for plaintiff and defendant brings error.Reversed.
Wm. H Fleming, of Augusta, for plaintiff in error.
W Inman Curry, of Augusta, for defendant in error.
Bertha Hamilton Schulze filed a petition against Gustave Arthur Schulze, alleging their marriage, abandonment by the husband, and his failure and refusal to contribute to the support of herself and child.She prayed for the issuance of a writ ne exeat, and that she be granted temporary and permanent alimony for the maintenance of herself and child.In his answer the defendant set up that on July 2, 1918, he had obtained, in Fulton superior court, a decree of total divorce from the plaintiff, and that she had no right in law to file any suit for alimony, and the suit should be dismissed, alleging also his willingness to contribute to the support of the child.At the hearing the defendant offered in evidence a certified copy of the final decree of divorce rendered in his favor in Fulton superior court against the plaintiff.The plaintiff introduced in evidence a certified copy of the divorce proceedings, including an affidavit by G. A. Schulze that the defendant, Bertha Schulze, was a resident of the state of Ohio, but that he was unable to give her exact address.Plaintiff claimed the right to attack the decree of total divorce for fraud, on three grounds, to wit: (1) That the plaintiff in the divorce suit, G. A. Schulze, was a resident of Richmond county; (2) that he knew the address of Mrs. Schulze; (3) that the period of separation between them did not cover a period of three years.Counsel for the defendant objected to the introduction of this record for any purpose other than what appeared on its face, claiming that the final decree could not be attacked upon any of the charges of fraud alleged, as they involved issues of fact which could only be determined by a jury in a proceeding in Fulton superior court to set aside the verdict and final decree of divorce.The court admitted the record for all purposes.The defendant then moved the court to dismiss the proceeding, on the ground that the record in the divorce case showed no defect which would render the final decree void, and that the petition for alimony could not be entertained so long as that decree stood unimpeached on the records of the court by which it was rendered, and that no collateral attack could be made in this proceeding by raising questions of fact as to the residence of G. A. Schulze, or as to the address of Mrs. Schulze, or as to the length of separation between the parties.The plaintiff introduced other evidence which, under the view we entertain of the law of the case, is immaterial.The court passed an order requiring the defendant to pay as alimony $50 on the 17th day of each month beginning March 17, 1919, and $150 as attorney's fees.
1.Civil Code, § 5968."The judgment of a court of competent jurisdiction cannot be collaterally attacked in any other court for irregularity, but shall be taken and held as a valid judgment until it is reversed or set aside."Civil Code, § 5963.The final judgment rendered in Fulton superior court, awarding a total divorce is apparently regular.There is nothing on its face to show invalidity.This is not a proceeding by way of writ of error from that court.It is a collateral attack in a proceeding for alimony in the superior court of another county.The judgment is a complete bar to the recovery of alimony so long as it stands unimpeached; and the only method by which it can now be set aside is by instituting a proper proceeding for that purpose in the court wherein such judgment was rendered.Dixon v. Baxter,106 Ga. 180, 32 S.E. 24;Hood v. Hood,143 Ga. 616, 85 S.E. 849;McLeod v. McLeod,144 Ga. 359, 87 S.E. 286;Herman on Estoppel, §§ 362, 364;Freeman on Judgments(4th Ed.) §§ 130, 133;Vanfleet's Collateral Attack, § 62.
2.It is argued that the certified copy of the divorce proceedings introduced by the plaintiff in the alimony suit, fails to show that the judge of the superior court of Fulton county passed an order before the trial of the...
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