Whitford v. Whitford

• Citation: 139 S.W. 653,100 Ark. 63
• Parties: WHITFORD v. WHITFORD
• Decision Date: 10 July 1911
• Court: Supreme Court of Arkansas

139 S.W. 653

100 Ark. 63

WHITFORD v. WHITFORD

Supreme Court of Arkansas

July 10, 1911

Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor affirmed.

Decree affirmed.

Wood & Wood and Coleman & Lewis, for appellant.

The decree for divorce is void for the reason that the record fails to show that the plaintiff had resided in the State for one year next before the bringing of the suit. Kirby's Dig., § 2678; 24 Ark. 522; 54 Ark. 172; 59 Ark. 441; 78 N.W. 108; 68 S.W. 971; 41 P. 369; 12 S.W. 90; 47 P. 21; 83 N.W. 1088; 12 Fla. 449; 36 Fla. 372; 3 Mo.App. 571; 8 S.W 440; 59 Ark. 487; 55 Ark. 30; 42 Am. St. R. 395. It will not be presumed that the facts were different from those stated in the record. 18 Wall. 350; 97 U.S. 444; 110 U.S. 701; 139 Id. 147; 60 F. 225; 5 Am. St. 836; 1 S.E. 124. The decree was absolutely void. 89 Ark. 160; 91 Ark. 527. The suit was commenced when the warning order was issued on the complaint. 84 Ark. 214. The record contradicts the recitals in the decree, and this renders the decree void. 49 Ark. 397; 51 Ark. 34; 55 Ark. 30; 71 Ark. 318; 72 Ark. 394; 16 P. 380; 7 So. 513; 65 S.W. 237; 60 P. 608; 155 U.S. 404. The chancery court had jurisdiction of this case. 48 Ark. 544; 40 Ark 401; 45 Ark. 511.

Davis & Pace and Marshall & Coffman, for appellees.

Jurisdiction is the power to hear and determine a cause. 34 Ark. 110; 6 Pet. 709. The decree in the divorce suit is binding until reversed by an appellate court. 124 U.S. 200. The required residence of plaintiff in a divorce suit cannot be questioned in a collateral proceeding. 33 L. R. A. 783; 28 Am. R. 129; 99 Cal. 374; 66 Ind. 291; 43 Ore. 513. The court had jurisdiction. 52 Ark. 200; 34 N.J.L. 418; 93 U.S. 274; 26 L R. A. (N. S.) 172; 46 Ark. 373; 7 Id. 48; 59 Ark. 487; 54 Ark. 627; 21 Ark. 364; 66 Am. Dec. 52; 72 Ark. 299; 61. Ark. 464; 49 Ark. 397; 50 Ark. 461; 63 Ark. 513; 72 Ark. 101; 57 Ark. 49. The divorce decree should not be disturbed. 59 L. R. A. 135; 73 Conn. 493.

OPINION

C. C. REID, Special Judge.

On August 28, 1910, Charles Whitford, while engaged in his employment as fireman on a regular interstate train of the Chicago, Rock Island & Pacific Railway Company, was killed in a wreck by the derailment of the train in Saline County Arkansas. Beulah Whitford took out letters of administration on his estate, and on the day of September, 1910, brought suit in the United States Circuit Court at Little Rock, under an act of Congress commonly known as the Hepburn Act, asking recovery for the benefit of herself as widow, and, in a separate count, sought also to recover for the benefit of the estate for pain and suffering of the deceased. Judgment was confessed for $ 5,500.

Anna A. Whitford, the mother of Charles Whitford, filed an intervention in the proceeding, alleging that Beulah Whitford was not the widow of Charles Whitford, deceased, that she had been married previous to her alleged marriage to the said Charles Whitford and had never been legally divorced from her former husband; that she therefore had no right to maintain the suit and recover thereby, but that the right of recovery was in her, the mother of said Chas. Whitford. It was agreed that the $ 5,500 should be paid into the registry of the court in settlement of the claim. Subsequently, Beulah Whitford, upon her petition to the probate court, was granted permission to settle the claim, and the $ 5,500 was vested in her as widow of the said Charles Whitford, less one-half the amount which was paid to her attorneys for services rendered in the collection of the claim.

Anna A. Whitford was not a party to this proceeding, and had no notice of the same. On January 10, 1911, Anna A. Whitford filed her bill in the chancery court in Pulaski County, setting up all the transactions in reference to the claim and charging that Beulah Whitford was not the widow of Charles Whitford, deceased; that the order of the probate court was fraudulently obtained on the last day of the court; that she, the said Anna A. Whitford, not being a party, was unable to take an appeal therefrom; that the money in the Federal court was about to be wrongfully paid over to Beulah Whitford and her attorneys, and that she had no remedy at law.

Since the question as to whether Beulah Whitford was the widow of Charles Whitford, if determined in the affirmative, must control the decision in this case, regardless of all other questions involved, we advert to such matters only as are deemed material to the accurate presentation of that question. It appears from the record that Beulah Whitford was raised in Saline County, Arkansas, and removed to Hot Springs in October, 1899. She went to Arizona in 1900 to marry Joseph Hollen, and, arriving there October 27th, was married to him on that day. They lived together as husband and wife for about two months when on account of his alleged mistreatment she left him and returned to Arkansas. She arrived at Hot Springs about January 2, 1901. In June she returned to Arizona, and endeavored again to live with Hollen, but received the same treatment at his hands and returned to Arkansas September 24. On December 11, 1901, she filed her complaint in the Garland Circuit Court, the material parts of which are as follows:

"The plaintiff, Mrs. Beulah Hollen, states that she resides in Garland County, Arkansas, and, except as stated herein, has so resided for more than one year last past. The plaintiff states that she was married to the defendant, Joseph H. Hollen, at Tucson, Arizona, on the 27th day of October, 1900; that she lived and cohabited with defendant as husband and wife until the 2nd day of January, 1901. * * * * Plaintiff states that she left defendant on the 2nd day of January, 1901, and returned to Arkansas, because of the reasons set forth herein; that she remained in Arkansas until the 26th day of June, 1901, when, on account of defendant's ceaseless importunities and solemn promises to do better, she again went to live with him in Arizona, but, to plaintiff's great sorrow and mortification, his former abuse and violence was much greater than before." Therefore on the 2nd day of September plaintiff was forced to and did leave the defendant and return to her home in Arkansas where she has ever since been.

On the 26th of December affidavit was made that the defendant, Joseph Hollen, was a non-resident of the State, and "filed January 6, 1902." On January 7, 1902, an attorney ad litem for non-resident defendant was appointed and accepted. It appears from the certificate of the clerk that the appointment of the attorney ad litem and warning order were attached to the complaint. There is found among the papers what purports to be the affidavit of a newspaper publisher that he had published a warning order in the case of Beulah Hollen against James H. Hollen, the affidavit to which appears to have been made November 22, 1902. The paper is not filed, nor is there any record of its having been filed. On October 25th in the Garland Chancery Court final decree was rendered as follows:

"In the Garland Chancery Court, October 25, 1902.

"And on the 25th day of October, 1902, the same being a day of the regular term of said court, the following among other proceedings were had before said court, to-wit:

Beulah Hollen, Plaintiff, v. Joseph H. Hollen, Defendant. Decree of Divorce.

"On this day comes the plaintiff, by her solicitor, M. H. Holleman, Esq., this action being reached on the regular call of the docket and it appearing to * * * * * that the defendant has been duly constructively summoned for the time and in the * * * prescribed by law by the publication of a warning order which issued on the complaint * * * affidavit of the plaintiff has been made in this action; that W. H. Evans, Esq., * * * practicing attorney at the bar of this court, has been duly appointed as attorney to defend this action for the defendant, and has accepted the same more than thirty * * * next before this date, and has filed his report as such herein, that the defendant * * * wholly failed to answer or otherwise defend this action, and he, being now three times called, comes not but makes default, this action is submitted to the court for its consideration and judgment upon the complaint with its exhibits, the appointment, acceptance and report of the attorney ad litem , exemplified copy of the statutes of the Territory of Arizona, the affidavit of the plaintiff, and that of Mary Moore, Mrs. H. Walker, * * * Young, Mrs. Carlton and James J. Morgan, in support of the complaint, and the court, * * * and sufficiently advised as to all matters of fact and law arising herein and * * * premises being fully seen, doth consider, order, adjudge, and decree that the bonds of matrimony heretofore and now existing between the plaintiff and the defendant be and the same are hereby * * * all things cancelled, set aside and shall be forever hereafter held for naught; that * * * each party hereto be restored all property not disposed of at the commencement of this action which either party hereto obtained from or through the other during the marriage in consideration or by reason thereof."

The clerk certifies that blanks in the decree were occasioned by fire; no objection being made.

On April 2, 1904, Beulah Whitford was married to Charles Whitford in Pulaski County, Arkansas, and lived with him as husband and wife until August 28, 1910, when he was killed, as has been shown. Though unimportant, it also appears that Jos. H. Hollen procured a decree of divorce from Beulah Whitford in the courts of Arizona, May 29, 1905.

The question we are called upon here to determine is, was the decree of the Garland Chancery Court an absolute nullity as to the parties or others by whom it is encountered. As...