Stuart v. Cole

• Decision Date: 31 March 1906
• Parties: STUART v. COLE et al.
• Court: Texas Court of Appeals

92 S.W. 1040

STUART v. COLE et al.

Court of Civil Appeals of Texas.

March 31, 1906.

Appeal from District Court, Hill County; Nelson Phillips, Judge.

Action by L. S. Cole and others against Sarah Stuart and others. From a judgment for plaintiffs, defendant Sarah Stuart appeals. Affirmed.

R. H. Sayers and Vaughan & Works, for appellant. Morrow & Smithdeal, for appellees.

BOOKHOUT, J.

Appellees, as plaintiffs below, on the 20th day of January, 1904, filed their original petition in the district court of Hill county, Tex., against Sarah Stuart, appellant, and Thomas Moss and wife, in the form of an action of trespass to try title to recover the title and possession of 90 acres of land out of the Joseph Creer League, in Hill county, Tex., alleging eviction therefrom January 1, 1902. On the 29th day of August, 1904, appellant filed her second amended original answer, same consisting of general denial, special plea, alleging that appellant was the lawful and surviving wife and widow of H. A. Stuart, deceased, under whom plaintiffs claim title to the property involved in this suit as heirs; alleging she and the said H. A. Stuart were married in Hill county, Tex., August 3, 1887, and continued to live together as husband and wife in said Hill county until on or about January 30, 1888, on which date he separated himself from appellant, and continued to live apart from her without her consent until his death; that said property sued for was occupied by said H. A. Stuart, now deceased, and appellant as their homestead up to on or about January 30, 1888; that said property is now the homestead of defendant, and has been continuously since said abandonment, and that she never abandoned same as her homestead; that the decree of divorce obtained by the said H. A. Stuart in the circuit court of Boone county, Ark., on the 28th day of July, 1891, was void and of no effect, for the want of the jurisdiction of said court on account of failure to secure service of citation on appellant, as required by law; that said decree could not determine her status as a citizen of the state of Texas as to her property rights, or devest her property of right; that said H. A. Stuart died about the year 1902, intestate, and left no child or children or their descendants surviving him; that appellant is an heir of said H. A. Stuart; that he was her said lawful husband at the time of his death; and that as such heir she is entitled to one-half in fee simple of said land sued for, and is entitled to claim homestead interest in all of said land during her natural life, and so long as she may use said land as a homestead. The trial court instructed a verdict for plaintiffs, and, in accordance with such verdict, judgment was entered for plaintiffs. Defendant perfected an appeal.

It is contended that the court erred in instructing the jury to return a verdict for the plaintiffs, because the evidence of the proceedings in the suit for the divorce in said circuit court of Boone county established the fact that said court had not acquired jurisdiction to hear and determine said cause, in that no legal service, constructive or actual, had been had on the defendant in said divorce proceedings. Appellant was divorced from H. A. Stuart by decree of the circuit court of Boone county, Ark., in 1891. Was this decree void for the want of jurisdiction over the appellant, the defendant in the divorce suit? A decree of divorce is a proceeding in rem, and terminates the marriage relation. Being a judgment in rem, it has extraterritorial force, and is binding and conclusive on the parties to the cause although one of them was at the time it was granted a nonresident of the state in which the divorce was granted. Greenleaf on Ev. § 525; Spear on Married Women, § 362; 9 Am. & Eng. Enc. Law, p. 945 (2d Ed.); Hunt v. Hunt, 22 N. Y. 217; Black on Judgments, § 928. Such decree, however, may be collaterally attacked by showing that the court which rendered it was without jurisdiction. Morgan v. Morgan (Tex. Civ. App.) 21 S. W. 155; Chunn v. Gray, 51 Tex. 114. The decree recites: "On this day comes the plaintiff by his attorney, William Keener, and this cause came on to be heard on the complaint of plaintiff unanswered, the report of the attorney ad litem for said nonresident defendant, and the proof introduced, and the court finds that an affidavit has been filed by the plaintiff in this cause that said defendant was a nonresident of this state at the commencement of this suit; that a warning order had been made by the clerk in this case, and published in the manner and for the length of time provided by law; that N. B. Crump, an attorney of this bar, had been duly appointed for the defendant for more than sixty days before the beginning of this term; that the cause of this bill for divorce occurred in the state of Arkansas and within five years before the beginning of this suit, and that the plaintiff has been a bona fide resident of this state for more than one year prior to the bringing of this suit; that the plaintiff and defendant were legally married in said state, and that the defendant had willfully abandoned said plaintiff for more than one year prior to the filing of this complaint herein." A certified copy of the following proceedings had in said cause was read in evidence: (1) Affidavit of H. A. Stuart that Sarah Stuart is a nonresident of the state of Arkansas. (2) Order of the clerk of Boone county, Ark., appointing N. B. Crump, a practicing attorney, to represent the nonresident defendant. (3) Warning order issued by the clerk of said Boone county circuit court in said divorce case, as follows: "Warning Order. H. A. Stuart, plaintiff, vs. Sarah Stuart, defendant. Boone county circuit court. The defendant, Sarah Stuart, is warned to appear in this court within thirty days, and answer the complaint of plaintiff, H. A. Stuart." (4) Certificate of publication: "I hereby certify that the annexed advertisement was inserted in the Harrison Times, a weekly newspaper published at Harrison, Boone county, Ark., for six consecutive weeks, commencing on the 18th day of April,...