Underwood v. Underwood

• Decision Date: 22 September 1914
• Docket Number: 585.
• Citation: 83 S.E. 208,142 Ga. 441
• Parties: UNDERWOOD v. UNDERWOOD.
• Court: Georgia Supreme Court

83 S.E. 208

142 Ga. 441

UNDERWOOD v. UNDERWOOD.

No. 585.

Supreme Court of Georgia

September 22, 1914

Syllabus by the Court.

Where proceedings are instituted in a court of another state to secure a divorce and alimony, where a decree of divorce is granted and the question of alimony is reserved, and the case stands for a period of 20 years and falls into a class of cases styled "stale actions" under a rule of that court providing that, where no steps are taken in a case for a period of 2 years, no further step can be taken in the same, unless the persons proposing to take the step shall first give reasonable notice in writing to the other party or his attorney, but the plaintiff does not take steps until after the lapse of 20 years from time the decree of divorce is rendered, and then, proposing to file an amendment asking for alimony, serves notice, not upon the defendant or upon one shown to be actually his attorney, but merely upon one who was the attorney of record when the decree of divorce was rendered, the court is not shown to have jurisdiction of the defendant; and a judgment rendered upon the application for alimony will not be enforced against the defendant residing in this state.

Error from Superior Court, Fulton County; Geo. L. Bell, Judge.

Action by Mrs. Cordelia Underwood against H. C. Underwood. Judgment for plaintiff on a directed verdict, and defendant brings error. Reversed.

Mrs Cordelia Underwood brought suit against H. C. Underwood, on a judgment for alimony which she had obtained against him in Kentucky. On the trial the court overruled a motion for a nonsuit, and, after hearing all the evidence, directed a verdict in favor of Mrs. Underwood for the amount sued for on the Kentucky judgment. The defendant excepted.

A. H Bancker and C. T. & L. C. Hopkins, all of Atlanta, for plaintiff in error.

Green Tilson & McKinney, of Atlanta, for defendant in error.

BECK J.

The controlling question in this case, and one that disposes of it in its entirety, is whether or not the Kentucky court, in which the judgment was rendered upon which the present suit is based, had jurisdiction of the person of the defendant. Whatever recitals as to service upon the defendant may be contained in the record of the case in the Kentucky court, the question as to whether or not there was legal service in some one of the ways provided by law upon the defendant can be inquired into. In the case of Knowles v. Gaslight Co., 19 Wall. 59, 22 L.Ed. 70, it is said:

"But, in an action on a judgment rendered in another state, the defendant, notwithstanding the record shows a return of the sheriff that he was personally served with process, may show the contrary; namely, that he was not served, and that the court never acquired jurisdiction of his person."

And in the case of Thompson v. Whitman, 18 Wall. 457, 21 L.Ed. 897, it is said:

"1. Neither the constitutional provision that full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state, nor the act of Congress passed in pursuance thereof, prevents an inquiry into the jurisdiction of the court by which a judgment offered in evidence was rendered.

2. The record of a judgment rendered in another state may be contradicted as to the facts necessary to give the court jurisdiction; and, if it be shown that such facts did not exist, the record will be a nullity, notwithstanding it may recite that they did exist.

3. Want of jurisdiction may be shown either as to the subject-matter or the person, or, in proceedings in rem, as to the thing."

Touching the construction of the full faith and credit clause of the Constitution of the United States, it is said in Black on Judgments, § 901:

"It is fair to infer that the Constitution means no more than that full faith and credit shall be given to the valid and lawful judgments of the courts of a sister state. But if, in point of fact, the court had no jurisdiction of the defendant, the sentence which it assumed to pronounce is no judgment at all; it is a nullity. It is true that a record must be held uncontrovertible. But, in the absence of jurisdiction, the account of the court's proceedings is not a record, for those proceedings would be coram non judice. For the very purpose, therefore, of according due faith and credit to the judgment, it must first be ascertained whether the document purporting to be a record is in reality entitled to that character. Nor should recitals of jurisdiction be conclusive on this point. For if, actually, there was no jurisdiction, no greater force or credit can be given such recitals than to any other part of the instrument."

There is no question that when the case in the Kentucky court was on trial resulting in the judgment of July 6, 1888, the defendant was represented by his attorney, and the question of service upon him and jurisdiction of his person for the purposes of that trial cannot now be controverted. In that trial the following judgment was rendered:

"This cause coming on to be heard on the pleadings and proof, and the court being sufficiently advised, it is therefore considered and adjudged that the plaintiff, Cordelia Underwood, be and she is hereby divorced from the bonds of matrimony with the defendant, H. C. Underwood, and restored to all the rights and privileges of a single woman. It is further considered that either party be restored to such property not disposed of at the commencement of this action as either he or she obtained from or through the other during marriage in consideration or by reason thereof. The prayer for alimony on the part of plaintiff is reserved, and not determined in this judgment."

In her suit resulting in the judgment or decree just set forth the plaintiff's prayer was "for divorce from the bonds of matrimony with the defendant, and for alimony in the sum of $______ per month, for her...