Hester v. Hester

1. Divorce. Collateral attack. Decree. A bill in chancery by the first wife of a decedent and her daughter against the second wife of decedent and her children, in which the prayer of the bill is for a decree adjudging that the first wife and daughter are the owners of all the property of which the deceased died seised and possessed and praying for the cancellation of a deed made by decedent to his seeond wife, for a division of the estate and for an accounting, the suit being based upon the illegality of the divorce obtained by the decedent from his first Wife,, is a collateral attack upon such decree of divorce and is not. maintainable. 2. Divorce. Setting aside for illegality. Proof. The proof must be clear beyond question as to the 'illegality of a divorce and the second marriage, before the court would be justifled in deciding that the first wife was still the legal wife and that the second marriage was void and the children of the second marriage bastards.

Appeal from the chancery court of Sharkey county. Hon. E. N. Thomas, Chancellor. Suit by Alma S. Hester and others against Bailey Cobb Hester and others. From a decree sustaining a demurrer to the bill and rendering a final decree for defendant, complainant’s appeal. The facts are fully stated in the opinion of the court. A collateral attack by a surviving party on a decree of divorce, after death of party‘obtaining divorce, may be made for want of jurisdiction over the parties or for fraud. Lawrence v. Nelson, 57 L. R. A. 583, 586, 594, 596, 598-9; 14 Cyc. 722E, 655, 657D, 659D; Cheely v. Clayton, 28 L. Ed. 298, 110 U. S. 701; Fernwood Lumber Co. v. Lumber Co., 85 Miss. 54, 37 So. 502; Moore v. Somerville, 80 Miss. 323, 32 So. 249; Duke v. State, 57 Miss. 229; Plummer y. Plummer, 37 Miss. 185, 199; Richardson v. Brooks, 52 Miss. 125. The action of divorce is inter parties and contracts of marriage cannot be dissolved or annulled any more than other contracts, except by the court obtaining jurisdiction of the person. The marriage relation is not a res, within the state where the jurisdiction of the court is invoked. Nor can the marital status be changed or dissolved by estoppel. Haddock v. Haddock, 201 U. S. -; Wood-son v. K. of H., 97 Miss. 210, 216; Suter v. Suter, 72 Miss. 345. The averment of the bill which was admitted by the demurrer show that the court was imposed upon by Charles O. Hester in that his wife Alma was sent out of the state by him to Cainall, Oklahoma, for the purpose of obtaining a divorce, which being true did not make her a nonresident. 2nd. Because -when the suit was filed the defendant in the divorce suit, complainant here, though actually-residing in Oklahoma, then Indian Territory, had been sent out of the state by fraud of her husband for the purpose of obtaining a divorce; and his domicile in Monroe county was her domicile, and failure to obtain personal service on defendant while here in Mississippi was fraud on the jurisdiction of the court which makes the decree void. 14 Cyc. 718, 613, 819; Suter v. Suter, 72 Miss. 345, 16 So. 673; Haddock v. Haddock, 50 L. Ed. 875; Andrews v. Andrews, 47 Miss. 372; Bell v. Bell, 45 Miss. 804; Streitwalf, 45 Miss. 810; Atherton v. Atherton, 45 Miss. 794, 804. The jurisdiction of the court can always be inquired into when its judgments and decrees are attacked. Anri the precise question here is “whether the wife Alma was justified by the fault of the husband in leaving him in Mississippi?” The ease on this question is determinable on the facts existing at the time of the filing of the bill and entering of the decree. The averments of the bill which are admitted by the demurrer show that the court was imposed on by Charles O. Hester, in that his wife, Alma, was sent out of the state by him to Cainall, Oklahoma, for the purpose of obtaining a divorce, which being true did not make her a nonresident. On the contrary the domicile of her husband fixed her domicile here in Monroe county, Miss., and the court could have obtained jurisdiction over her person only by personal service of process. The principle upon which the case of Suter v. Suter, 72 Miss. 345, was determined applies in full vigor to this case. The cases cited supra from the United States Supreme Court apply the same salutary principle. The fact that these cases were decided under the full faith and credit clause of the Federal Constitution does not make them any less an authority applicable to and governing the instant case. On the contrary the domicile of her husband fixed her domicile here in Monroe county, Miss, and the court would have obtained jurisdiction over her person only by personal service • of- process. And the decree, being obtained on a false charge and by perjured testimony, was a fraud on the court. In Suter v. Suter, supra, our own court said it was a fraud upon the jurisdiction of the court for the wife to file a bill for divorce and alimony alleging the husband’s residence to be New Orleans, La., when she failed to show “reasonable grounds why she should not return to her husband’s home and hers.” It is true that there was a direct proceeding on appeal from a decree granting the relief asked; but it being a question of jurisdiction, the facts on which the jurisdiction of the court depended can be shown in a collateral proceeding, as the state and the United States authorities cited in this brief abundantly show. The original bill was filed October 10, 1910, fifteen and one-half years after the appellant had notice of the divorce decree. This is a full and complete estoppel. Woodson v. Colored Grand Lodge of Knights of Honor of America, 97 Miss. 210, 52 So. 457, is conclusive of the ease. It is there said by Mayes, C. J., speaking for a unanimous court, between two periods, “On principal, we do not know of any reason why the rules of estoppel should not be applied as strictly to the facts of this ease as any other civil contest.” The amended bill which contradicts the sworn allegations of the original bill admits that the appellant heard in one year after she left Mississippi that C. 0. Hester was married. She lay idle fifteen and a half years, until five children were born and property accumulated, and also until C. O. Hester was dead, and then turns up with this suit. No court of conscience in the world will permit this. The court having decided that the law of estoppel will apply in cases of this kind, as well as civil suits of other kinds, we call attention to the fact that all the authorities are in accord on the proposition that appellant has not shown diligence. In Foster v. Mansfield, Coldwater, etc., Railroad Company, 146 U. S. 199, the court used this language. “The defense of want of knowledge on the part of one charged with laches is one easily made, easy to prove by his own oath and hard to disprove; and hence the tendency of courts of recent years has been to hold the plaintiff to a rigid compliance with the law which demands, not only that he shotdd have been ignorant of the fraud, but that, he should have used reasonable diligence to have informed himself of all the facts.” - Appellant by the original bill (sworn to) heard of the divorce decree fifteen and a half years before the suit was • filed and by the amended bill heard of the marriage a. much longer time. In Coleman v. First National Bank of Decatur, 22 So. (Ala.) 84, quoting from its own decisions and 2 Pom. Eq. Jur., sec. 865, lays down the law decisively against appellant. By the original bill (sworn to) she knew of the divorce and decree. By the amended bill she knew of the marriage. She slumbered on her rights fifteen and one-half' years and then waited until C. O. Hester was dead and could not defend himself and wife and children and till after he and she had worked hard and accumulated something, and then came to a court of equity to make a pauper out of the appellee and bastards out of her innocent and helpless children. In Manning et al. v. Pippin et al., decided by the. Supreme Court of Alabama, April 26, 1892 and reported in 11 So. 56, this language was used by the court: “In James v. James, 55 Ala. 534, it was said by this court:. ‘By no mere general averment of ignorance can a party account for long delay and acquiescence. By distinct averments lie must show why he was so long ignorant, and acquit himself of all the knowledge of the facts which would put him on inquiry. He must show how'and when he first came to the knowledge of the facts, or the court may justly refuse to consider his ease, on his own showing, without inquiring whether there is'a demurrer or formal plea of the statute of limitations contained in the answer.” Independently of circumstances, equity usually adopts as a bar to the assertion of such trust the period which bars a title at law. Six authorities cited. Its meaning. Equity aids the vigilant, not those who slumber on their rights. The principle embodied in this maxim operates through its entire remedial portion of equity jurisdiction. Its application and effects have been stated by an eminent English chancellor as follows: “A court of equity, which is never active in relief against conscience or public convenience, has always refused its aid to stale demands when the party has slept upon its rights acquired for a great length of time. Nothing can call forth this court into activity but consicience, good faith, and reasonable diligence.- In early times limitations were confined to law. However, courts of equity, proceeding on the analogy of these statutes, applied the law period.” Pom. Eq. Jur. (2 Ed.) 418-419. In 2 Nelson on Divorce and Separation, p. 1008, it is held that courts have a right to protect themselves from fraud. But, said this eminent author, “If an innocent party has married one of the divorced parties, the court refuses application if the motive is to obtain alimony or some pecuniary advantage.” Appellant has not shown in the original bill the amendment to the bill, or the amended bill, or attempted to show any reason whatever for this long delay. When she heard of the divorce decree in the original bill, and the marriage, in the amended bill, she was then put on notice and having held her peace for all' these fifteen and one-half years, she is forever estopped. Appellant knew of the decree of divorce by the original bill (sworn to) and by the amended bill she knew of the marriage one year after the decree was granted. She had two years in this to appeal. See annotated Code 1892, section 3112. That gave her one year after she had knowledge in which to appeal. Collateral attack will not'lie. Her time for all appeal had not expired. See 93 Fed. 49, and the many cases there cited from the state courts and the court of appeals, and U. S. Supreme Court. In McNeil v. McNeil, 78 Fed. 834, it is held that eighteen months is too late to file a bill to set aside a decree of divorce. It is laches and bars the action. This court emphasizes the fact that in suits to set aside a divorce decree the complainant should not be negligent. At page 836 the court said, “A.judgment of divorce, more than a judgment of any -other kind, would seem from its great effects to claim from a party affected as well as from the insistence of the law, an immediate attention.” If a second marriage has taken place after an unreasonable delay of the defrauded, party, she has lost her rights by laches and cannot disturb the decree upon which others have relied. Public policy forbids the review of decrees of divorce under such circumstances.” 2 Nelson on Divorce and Separation, p. 1019. Summing up this phase of the case, we see that from the amended bill, which flatly contradicts the sworn allegations of the original bill that appellant heard one year after she left Mississippi, that C. 0. Hester had married appellee. It is true that this second marriage did not take place as early as she alleges, but it shows that she was put on notice in plenty of time to have even prevented the second marriage. Still she lies low like “Brer Rabbit” till after large property has been accumulated and five children brought into the world, and then comes to a court, a court of conscience, mind you, and asks for relief. To get this relief she is willing to bastardize the children, and turn them out, not only without means of support, but without a good name. “He who steals my purse, etc.” In Nicholson v. Nicholson, •-- N. E. (Ind.) 225, the law is laid down with great force, that public policy requires diligence on the part of those who seek to set aside divorce decrees. That was a case where only four years lapsed. We objected to the filing of the amended bill. Our reasons are in the record, and in our opinion are cogent and sufficient. An amendment to the original bill has been filed. The original bill was sworn to. The amended bill flatly contradicted the original bill without giving any explanations. The amended bill avers that through her attorneys complainant had the record of Itawamba and other' counties examined and-found no record of the marriage license from the circuit clerk of Itawamba county. This, is a flat contradiction of the record. All this ought, it seems to us, to convince this court that the whole scheme is without equity and good conscience. Both of these, with diligence added, are essential to the invoking the aid of’ the court of equity. May & Sanders, for appelleess. If the divorce decree rendered by the chancery court in February 1894, dissolving and annulling the marriage-of Charles O. Hester to Alma S. Hester, is not open to-attack by this collateral prodeecing, then all questions, presented by this appeal become unimportant and immaterial. For the convenience of the court we again quote the language of the divorce decree. “DECREE-CHANCERY COURTS, EEB’Y. TERM, 1894. “State of Mississippi, “County of Monroe. “C. 0. Hester v. Alma Hester. This day this cause comes on for hearing, it appearing the defendant is legally in court, and it further appearing from the evidence adduced in open court that the •complainant is entitled to- the relief prayed for, it is adjudged and decreed that the prayer of the bill be granted and that the bonds of matrimony existing between complainant and defendant be and the same are hereby dissolved and declared null and void. That complainant pay the cost. Adjudged and decreed this the 7th day of March, 1894. “Baxter McFarland, Chancellor, etc.” We maintain that the decisions of the supreme court ■of our state make it clear that said divorce decree is not •open to the attack made by this proceeding. In the case of Cannon, Admr., etc., v. Cooper et al, Adrar., etc., 39 Miss. 784, our court, speaking through Hardy, J., on pages 788 and 789 quotes a decree of the lower court and discusses its verity as follows: “ ‘And it appearing to the satisfaction of the court that the cause had been duly and properly revived on the motion of said plaintiff against said Eliza J. Martin and Timothy T. Cooper, administrators, etc., of John Martin, deceased, in the high court of errors and appeals and by the order thereof, and that said administrators had thereby due notice of the pending of this cause in •said circuit court; it was therefore ordered that the cause be revived in said circuit court against them; and as they had filed no new plea to the action, that it should stand for trial on the issue thereto filed,’ etc. The cause was then tried and judgment on verdict was rendered for the plaintiff. “The defendants objected to the introduction of this transcript, because, first, the transcript showed no revival of the action against them in the circuit court, nor notice to them of its pendency; second, it did not show any such revival or notice in the high court of errors and appeals. This objection was sustained and the transcript excluded, and judgment was thereupon rendered for the defendants on the plea of nul tiel record. “It will be observed that the transcript positively shows that it appeared to the satisfaction of the court that the suit had .been duly revived in this court, against these administrators. It does not state the evidence by which the recited fact was made to appear to the court. Now was it necessary that it should do so. The evidence upon which orders and judgments of the courts of general jurisdiction are founded is not necessarily a part of the record, nor required to be shown by it. The presumption of the law is, that such judgments, are founded on proper and sufficient evidence; and in the absence of the statement of the evidence, if it appear that the fact in question was adjudicated upon evidence deemed sufficient by the court, upon well-settled principles, the judgment cannot be collaterally impeached,, however, insufficient the evidence may have been in fact. Cason w. Cason, 31 Miss. 578. ” Again in the case of Pollock, Admr., v. Buie, et al., 43 Miss. 140, the court, in an opinion delivered by Chief Justice Peyton on page 150, used this language: “With respect to the first question, the record shows, a waiver of notice by citation and consent that the account of said executors may pass to a final hearing on the part of all the legatess and devisees of the testator,, except Dorothy V. McCall, upon whom citation had been executed by the sheriff on the 18th day of September, A. D. 1865. And the decree recites that all the legatees and • devisees had due and legal notice of the pendency of the account, and waived citation, and that all the said legatees and devisees were of full and lawful age, except Dorothy V. McCall, who was a minor without legal guardian, for whom the court appointed a guardian ad litem, who being in court, accepted the trust and waived notice and citation, and consented that said account might then be examined and audited. We think, upon principle and authority, these waivers in the record and recitals in the decree are sufficient evidence of notice to the parties interested of the pendency of the account, and of the time and place of the final settlement thereof, to sustain the decree made by the court on said settlement. For it has been repeatedly determined by our predecessors that the court of probates, as to the jurisdiction conferred by the Constitution is a court of original and general jurisdiction, and that every presumption is to be indulged in favor of the correctness of the facts on which its decree is founded, and which appear of record. Root v. McFerrin, 37 Miss. 17; Hardy v. Gholson, 26 Miss. 70; and Duncan v. Mc-Whorter, 40 Miss. 231. The evidence upon which the orders and judgments of courts of general jurisdiction are founded is not necessarily a part of the record, nor required to be shown by it. ' The presumption of law is that such judgments are founded upon proper and sufficient evidence and cannot be collaterally impeached, however insufficient the evidence may have been in fact. Cason v. Cason, 31 Miss. 678, and Cannon v. Cooper,. 39 Miss. 784-789.” Cocks v. Simmons, 57 Miss. 183; Sadler v. Prairie, 69 Miss. 672; Allen v. Dicken, 63 Miss. 91; Ames v. Williams, 72 Miss. 760; Gillespie v. Hauenstein, 72 Miss. 838; Vicksburg Grocery Co. v. Brennan, 20 So. (Miss. 1896); Railway v. Thomas, 86 Miss. 27; Sweatman v. Dean, 86 Miss 647. We have thus seen by the long fine of decisions of our supreme court that the adjudication of the chancellor of the facts showing that Alma S. Hester, the defendant-in the divorce suit, (appellant here) was “legally in court,” cannot be impeached collaterally. The conclusive presumption that Alma S. Hester, the defendant in the divorce suit, was “legally in court” at the trial of said suit, destroys the contention of counsel that the decree was, and is, void because procured through fraud, for the reason that the only allegations of fraud are, that the complainant, Charles O. Hester, fraudulently caused his wife to remove from the state of Mississippi to the Indian Territory for the fraudulent purpose of .securing a divorce upon false grounds to be established by perjured testimony. If the defendant was “legally in court, ” the circumstances of her removal to the Indian Territory are necessarily irrelevant and immaterial, because she was “legally in court” to defend the suit upon its merits, and being “legally in court” she either waived her right to defend herself against - the alleged false accusations contained in the divorce bill, or she was unable to convince the chancellor that the accusations constituting the grounds for divorce were false; and in either case, if she felt aggrieved by the chancellor’s decision, her redress was, as stated in the Thomas case, supra, “by direct proceedings in the court which tried the cause or by appeal to a higher court. ”