Turner v. Bell

Decision Date11 March 1955
Citation198 Tenn. 232,2 McCanless 232,279 S.W.2d 71
Parties, 198 Tenn. 232 Adelaide TURNER, Guardian of Lyda Louise Bell, a non compos mentis, v. Theron O. BELL et al.
CourtTennessee Supreme Court

Matthews, Walsh & Thompson, Memphis, for plaintiff in error.

Albert G. Riley and Howard W. Pritchard, Memphis, for defendants in error Theron Bell and Brooks and Anna Mae Monaghan.

Thomas R. Price and Canada, Russell, Turner & Alexander, Memphis, for defendants in error R. G. Gill, Trustee, and Provident Mut. Life Ins. Co. of Philadelphia.

RIDLEY, Special Justice.

As the plaintiff in error in this Court and the complainant below, and the defendants in error in this Court and the defendants below are the same, in this opinion they will be referred to as plaintiff and defendants.

On September 15, 1953, Adelaide Turner, guardian of Lyda Louise Bell, filed her original bill in the Chancery Court of Shelby County, Tennessee, against the defendants, Theron O. Bell, R. G. Gill, Trustee, Provident Mutual Life Insurance Company of Philadelphia, Carl A. Robinson, Trustee, Brooks V. Monaghan, and wife, Anna Mae Monaghan, seeking to have declared void ab initio a decree of divorce granted to Lyda Louise Bell from C. A. Bell, deceased, on July 8, 1933, by the Circuit Court of Shelby County, Tennessee, to have the marriage ceremony between C. A. Bell and the defendant, Theron O. Bell, on August 18, 1935, declared void ipso facto, to have decreed to plaintiff's ward homestead and dower in an undivided one-half interest in certain properties, and seeking to have such homestead and dower rights declared paramount to those rights acquired by the other defendants by reason of certain deeds and mortgages executed by the said C. A. Bell, deceased, and the defendant, Theron O. Bell.

All of the defendants demurred to this original bill and therefore, of course, the facts under a reasonable construction thereof as alleged in the bill and the exhibits thereto for the purposes of this cause are true. Those facts necessary to an adjudication of this cause are as follows:

On or about November 8, 1911, Lyda Louise Bell, the plaintiff's ward and C. A. Bell were married in Memphis, Tennessee, and lived there as husband and wife until November 6, 1931, when Lyda Louise Bell was adjudged insane and ordered committed to Western State Hospital by order of the County Court of Shelby County, Tennessee, in proceedings under Chapter 17 of the Public Acts of 1919. At that time under this proceeding no guardian was appointed. She apparently remained in Western State Hospital at Bolivar for a brief period of time after which she returned to Memphis and resumed and continued the marital relations with C. A. Bell until July, 1932.

On June 26, 1933, C. A. Bell filed suit for divorce against Lyda Louise Bell in the Circuit Court of Shelby County under which process issued and personal service was had. On July 8, 1933, the said Lyda Louise Bell in her own name filed an answer and cross-bill which was signed by two reputable firms as her solicitors and which was signed and sworn to by her on July 7, 1933, strictly in accordance with the oath prescribed by statute. Process issued under this cross-bill and was served on the cross-defendant, C. A. Bell, who filed an answer thereto on July 13, 1933, denying all material allegations thereof. On July 8th a motion for alimony and attorney's fees pendente lite had been heard and overruled by the Court. This cross-bill of Lyda Louise Bell sought process, a divorce from bed and board, alimony and attorney's fees permanent and pendente lite, and general relief.

The case of C. A. Bell against Lyda Louise Bell was heard in the Circuit Court of Shelby County, Tennessee, on November 8, 1933. It appears from the decree itself that both the plaintiff and the defendant in said cause were represented at said hearing by competent counsel, that both the plaintiff and the defendant testified, and that C. A. Bell introduced two other witnesses and Lyda Louise Bell three others. It decrees an absolute divorce to Lyda Louise Bell under her cross-bill, attorney's fees and alimony. In enforcing this decree for alimony it was necessary to file a petition against the said C. A. Bell for contempt. This petition was sworn to in person by Lyda Louise Bell on April 19, 1934, and was filed on April 20, 1934. On May 28, 1934, a hearing was had under this contempt petition and upon C. A. Bell's complying with the original decree of the Court he was purged of the contempt and the petition was dismissed by consent.

Under this state of facts the plaintiff contends that the divorce decree granted to Lyda Louise Bell on November 8, 1933, is void for (1) fraud, (2) lack of jurisdiction in the Circuit Court of Shelby County. The defendants contend (1) that said decree is valid, (2) if not valid is merely voidable and (3) if voidable this is a collateral attack thereupon and that a collateral attack will not lie upon a voidable decree.

The fraud relied upon by the plaintiff is alleged in her original bill in the following language, to-wit:

'That on the 26th day of June, 1933, and subsequent to the said Lyda Louise Bell being adjudged insane, the said C. A. Bell filed a bill for divorce, case No. 32968, R.D. in the Circuit Court of Shelby County, Tennessee, against the said Lyda Louise Bell, who at the time, was a non compos mentis, and fraudulently failed to disclose therein and disclosed said fact in his pleadings only when he answered the alleged cross-bill of complainant's ward, the fact that his wife had been previously adjudged insane; that no Guardian ad litem was appointed in said divorce case.'

The fact of Lyda Louise Bell's mental condition was disclosed to the Court in this divorce proceeding by a cross-bill signed and sworn to by her containing the following language, to-wit:

'That, in November 1932, after telling cross-defendant that he was taking her to a picture show, he drove her to the Western State Hospital for the Insane at Bolivar, Tennessee, where, against her will, he had her confined for a period of several months.

'That, after her release from that institution, where she was unjustly detained, she was allowed to return to the home of the parties, whereupon cross defendant told her that if she ever said anything to him or about him, or otherwise interfered with his personal affairs, he would have her confined again.'

Plaintiff's answer to this cross-bill contains the following language:

'he denies that he did anything wrong in committing her to the State Hospital at Bolivar, as said commitment was according to law and under the authority of the County Court Chairman, and under the advice of eminent physicians. He further denies that she was unjustly detained in said institution.'

Under these circumstances it is clear that, even if defendant attempted to practice a fraud upon the Court by concealment of a necessary fact in his original bill, such fraud was not successful. All necessary facts were disclosed to the Court by the pleadings themselves. The divorce was not granted to the plaintiff under his original bill, it was granted to the cross complainant under her cross petition. Therefore there is no fraud, McDowell v. Morrell, 73 Tenn. 278.

C. A. Bell died intestate on May 27, 1953, seized and possessed of certain real property set out and described in the bill which was conveyed to him and his wife Theron O. Bell as tenants by the entirety subsequent to August 18, 1935, parts of which are now held by other defendants as their successors in title.

The original bill seeks (1) homestead and dower in real property; (2) a declaration that the marriage ceremony of C. A. Bell and Theron O. Bell is void; (3) the declaring secondary of certain deeds and mortgages in order to obtain paramount title to this homestead and dower.

In Jordan v. Jordan, 145 Tenn. 378, at page 454, 239 S.W. 423, at page 445, the difference between a direct attack and a collateral attack is clearly defined. In that case the Court said:

"If an action or proceeding is brought for the very purpose of impeaching or overturning a judgment, it is a direct attack upon it, such as a motion or other proceeding to vacate, annul, cancel or set aside a judgment, or any proceeding to review it in an appellate court, whether by appeal, error, or certiorari, or a bill of review, or, under some circumstances, an action to quiet title. On the other hand, if the action or proceeding has an independent purpose and contemplates some other relief or result, although the overturning of the judgment may be important, or even necessary to its success, then the attack upon the judgment is collateral.' 23 Cyc. 1062.'

This is a collateral attack. McCartney v. Gamble, 184 Tenn. 243, 198 S.W.2d 552; Jordan v. Jordan, 145 Tenn. 378, 239 S.W. 423, 433; Hawkins v. The Manhattan Savings Bank & Trust Co., 1947, opinion of Court of Appeals, Western Division, unreported, adopting an opinion by then Chancellor John E. Swepston; 31 Am.Jur., Judgments, Sec. 611 page 204.

The plaintiff admits that this is a collateral attack when in her reply brief she says:

'Both groups of appellees have raised in their respective briefs the question of collateral attack which is nothing more than a straw-man, as big, shaggy and frightening as they could make it, but which has nothing more to do with this lawsuit than a vegetable garden scarecrow.'

The single object of the suit at bar is to obtain for Lyda Louise Bell homestead and dower in the real property of C. A. Bell, deceased, although in order to do this it is necessary to declare void the divorce decree, the marriage with Theron O. Bell, and to have Lyda Louise Bell's claim to homestead and dower declared superior to the claims of those holding under C. A. Bell and Theron O. Bell as grantees and mortgagees.

Being a collateral attack it will only lie against a decree void ab initio.

'Void judgments and...

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