Thoms v. King

• Decision Date: 23 May 1895
• Parties: THOMS v. KING et al.
• Court: Tennessee Supreme Court

31 S.W. 983

95 Tenn. 60

THOMS v. KING et al.

Supreme Court of Tennessee.

May 23, 1895

Appeal from chancery court, Shelby county; John L. T. Sneed Chancellor.

Bill by Josephine Thoms against Virginia A. King and others to recover dower in the estate of H. A. Thoms, deceased. The bill was dismissed, and complainant appeals. Affirmed.

Metcalf & Walker, and W. A. McNiell, for appellant.

John P Edmondson, L. & E. Lehman, Henry Craft, and F. P. Poston, for appellees.

McALISTER J.

The complainant, Josephine Thoms, a resident of Natchez, Miss and claiming to be the widow of one H. A. Thoms, who died at Memphis, while a resident of the state of Tennessee, filed this bill in the chancery court of Shelby county against certain heirs of said H. A. Thoms, for the purpose of recovering dower in his estate. The vendees of other heirs who purchased the interests of the latter in realty inherited from the said H. A. Thoms were also made parties defendant. The claim of complainant to dower in these lands was resisted by all the defendants upon the ground that on the 20th September, 1872, the said H. A. Thoms had procured a divorce from the said Josephine Thoms in a court of competent jurisdiction in Alexander county, Ill., and exhibit with their answers duly-authenticated copies of said decree and proceedings. The complainant, on the 13th November, 1893 filed an amended and supplemental bill, in which she disclaimed any knowledge of the divorce proceedings in Illinois, until apprised thereof by the answers filed to her original bill. Complainant expressly averred that she had no notice whatever of the Illinois suit, or that any such decree had been pronounced. Complainant then averred that in 1870 the said H. A. Thoms had filed a bill for a divorce against her in the state of Mississippi, where they both resided, in which he charged her with all the statutory grounds for a divorce, excepting that of desertion; that she interposed a demurrer, and thereafter filed a petition for alimony, in which the charges of the bill were specifically denied; that H. A. Thoms answered her petition, reiterating the allegations of his bill; that the cause came on for hearing on the petition, answer, and proof, whereupon it was adjudged by the court that Thoms should pay $50 per month maintenance and $400 for counsel fees. Complainant then alleges that thereafter, on the 15th August, 1870, Thoms, in vacation, before the clerk at rules, dismissed his original bill for a divorce, which had not been passed on in the proceedings for alimony. The order of dismissal recited that it was "without prejudice." Complainant alleges that thereafter she filed another petition reciting the former order granting alimony and allowance of counsel fees; that Thoms had failed to pay the same, and charged that, in order to evade payment, he had procured the dismissal of his original bill "without prejudice," and complainant prayed said order of dismissal without prejudice be vacated. The court, upon the hearing, set aside said order. Thereafter an order was entered upon motion of Thoms, dismissing the bill at his own costs, omitting the words "without prejudice." Complainant charges that the said Thoms then left for parts unknown, abandoning her without reasonable or justifiable cause, and that, if he went to Illinois, it was not for the purpose of a bona fide residence, but for the purpose of instituting divorce proceedings against her without her knowledge, or an opportunity to resist them. Complainant then attacks the validity of the Illinois decree, charging that Thoms had not been a bona fide resident of Illinois for one whole year preceding the filing of said bill, as required by the laws of that state. Complainant further charges that the dismissal by the said Thoms of his bill for divorce in the state of Mississippi was res adjudicata, and that the decree rendered in Illinois thereafter was an absolute nullity. Complainant further charges that the suppression of the facts connected with the divorce proceedings in Mississippi was a fraud upon the Illinois court, rendering its decree null and void. It is further charged that, said decree having been obtained in Illinois without personal service upon complainant, it can at most only affect her dower in lands in the state of Illinois, where the decree was pronounced. The defendants all answered the amended bill, relying upon the Illinois decree in bar of complainant's right of dower. Proof was taken, and upon the final hearing the chancellor dismissed the bill. Complainant appealed, and has assigned errors.

The first assignment is that the court erred in not holding the Illinois decree void, for the reason that H. A. Thoms was not a bona fide resident of that state, but took up his residence there for the fraudulent purpose of procuring a decree of divorce. The proof shows that H. A. Thoms rented a house and embarked in business in Cairo, Ill., on the 4th of June, 1871, and his bill for divorce was filed more than one year thereafter, to wit, on July 22, 1872. Moreover, the proof shows that Thoms continued to reside in Illinois, purchasing real estate and transacting business there, for four or five years. We think the weight of testimony is against this assignment, and shows that Thoms was a bona fide resident of Illinois at the time his petition was filed.

The second assignment is that the court erred in not holding said decree void for the reason there was no allegation or proof that Thoms was a bona fide resident of said state of Illinois at the time he instituted said suit for divorce, or that he had been such resident for one whole year prior thereto. It suffices to say, in answer to this assignment, that the averment is made upon the face of the petition filed by H. A Thoms in Alexander county for a divorce from the present complainant "that said Thoms is an actual resident of the county of Alexander, and has been for one whole year past a resident of the state of Illinois." The other branch of this assignment is that there was no proof that H. A. Thoms was an actual resident of Illinois for one year prior to the institution of his suit. Complainant, for the purpose of showing that there was no proof of the residence of the petitioner, filed a transcript of the proceedings in the chancery court of Alexander county, Ill. The only proofs we find in this transcript are the affidavits of the petitioner and his brother, one L. D. Thoms, who fully make out the case excepting the proof of residence. The decree recites, viz.: "This day came the complainant, by his solicitors, and also came the master in chancery, who submitted his report and proofs taken herein, and the court, having duly read and examined...