173 Ga. 856 | Ga. | 1931
Lead Opinion
On March 2, 1931, A. T. Cochran left his home in Murray County, where he had resided for many years, stating that he was going to Chattanooga to-buy goods for the general mercantile and supply business of Cochran & Tatum, a partnership in which he owned a half interest. Besides his interest in the partnership he owned a warehouse, a number of houses and farms which were being rented, the aggregate value being alleged as $40,000. Upon his failure to return, Mrs. Cochran presented to the judge of the superior court, on March 13, 1931, a petition alleging that before leaving his home Cochran had left notes for delivery after his departure, which rendered it uncertain whether he would ever return to Murray County, but that his legal residence was still in that county; that unless the court should through a receiver take charge of the property, Cochran would convey and encumber it for the purpose of defeating petitioner’s claim for alimony; that she had no separate estate, but was wholly dependent upon her husband; that she had for several years been in bad
Service of the petition by publication was ordered, injunction was granted as prayed, -and Mrs. Cochran was appointed temporary receiver of the properties of Cochran. On July 15, 1931, Cochran was served personally in Murray County. On July 18 he filed an answer admitting that on March 2 he was a resident of Murray County, but denying that his legal residence was still in that county. He set up, against the averment of the wife that their marriage had not been dissolved and her claim for alimony, a decree of divorce procured by him in the second judicial district court of the State of Nevada, in and for Washoe County, Eeno, Nevada, dated June 22, 1931, which suit was instituted on May 2, 1931, and of which Mrs. Cochran had actual notice by personal service, and opportunity to file defense. And he sought to have the order appointing receiver and granting relief in accordance with' the prayers of the petition revoked; to have his property turned -back to him, and an accounting of the same by the receiver. On hearing the court ordered Cochran to pay the plaintiff $100 per month
Headnotes one, two, three, and four do not require elaboration.
The petitioner and the defendant were married in the year 1905 in Murray Countjq Georgia. For many years they resided at Chatsworth in that county, until March 2, 1931. There are two children, a married daughter and a son nineteen years of age, who at the time of the separation was attending school elsewhere. The defendant husband accumulated considerable property, estimated by the wife at approximately $40,000, consisting of a half interest in a copartnership known as Cochran & Tatum, doing a mercantile business in Chatsworth, and real estate consisting of a number of city lots and some farm lands. Late in 1930 differences arose between the husband and wife, because of attentions on the part of the husband to a young woman who was employed as a clerk in the business of Cochran & Tatum. The wife had many times protested, and the partner had also protested that such attentions were becoming noticeable and would injure the business. The defendant began secretly, without the knowledge of his partner, Tatum, paying to the young woman clerk a sum of money monthly in addition to the salary which was being paid by the firm. Finally, on March 2, 1931, the husband left his home before daylight, stating that he was going to Chattanooga, Tenn., for the purpose of purchasing goods for the mercantile firm of Cochran & Tatum. He left with the bookkeeper of the partnership, with instructions not to deliver the same for two days, notes, one to his wife and one to his son, the purport of which was to direct that the wife take no action, and that he would see that she did not suffer, and that she might collect the rents from his real estate, amounting to about $70 per month, and use them for carrying on
The sole ground alleged in his petition for divorce was “ extreme cruelty,” which, under the laws of Nevada, is made a ground for absolute divorce. Under an act approved March 13,1931, the State of Nevada has fixed a residence of six weeks as sufficient to afford jurisdiction to the courts for the grant of divorces. On the hearing on the petition for alimony, the record of the Nevada divorce case, including the petition and decree granting the divorce, was introduced in evidence, but the record does not include any part of the evidence introduced in the Nevada court for the purpose of showing whether the decree was sufficiently supported. In the answer of Cochran he alleged, and on the hearing in this case he
Moreover, the evidence demands a finding that Cochran did not make any effort to close out his interest in the mercantile business in, Chatsworth, but left it to be carried on by his partner until his return. • Not only that, but he left, until the date of this trial, on deposit in Chattanooga, Tenn., more than $1000; and it is not supposable that, had -he intended a bona fide permanent domicile in Beño, he would have left his mercantile business to be continued in Chatsworth and his more than $1000 to remain in bank at Chattanooga. The record of his success in the business world in Chats-worth is conclusive evidence that, had he intended a bona fide permanent home in Beño, he would have committed no such business folly. Had his purpose been bona fide, he would not have left his home in Chatsworth between sundown and sunrise, with the misleading statement, which was equivalent to a falsehood, that he was going to Chattanooga merely to buy goods for the mercantile firm. The fact that he had sold cotton belonging to the firm and executed a promissory note for the proceeds, and that he deposited the same in his own name in Chattanooga and not in the name of the firm, and left almost immediately for the west, shows that his statement on leaving was intended to mislead. The fact that he did go to Chattanooga, did buy some goods, does not
The divorce decree is void. That conclusion is fortified by the adjudications of the Supreme Court of Nevada, with reference to the divorce laws of that State. In Fleming v. Fleming, 36 Nev. 135-141 (134 Pac. 445), decided when the period of residence required was six months, it was held that actual living in the county by plaintiff for the six months was necessary to give jurisdiction to the court. “Reside,” the court says, “means permanency as well as continuity. Actual residence is the place of actual abode; of physical presence — the abiding place. Legal residence may be ideal, but actual residence must be substantial. Where residence is made the basis of adjudication, parties who seek to invoke the power of the court to relieve them from the marriage tie must bring themselves clearly and affirmatively within the jurisdiction of the court.” Again, the Supreme Court of Nevada declared that residence required by the statutes of that State for divorce purposes is residence of the character denoting present intention on the part of one claiming to make the county in which the suit is instituted such person’s home, at least for an indefinite period. Latterner v. Latterner, 51 Nev. 285 (274 Pac. 194). In Walker v. Walker, 45 Nev. 105 (198 Pac. 433), the court declared that residence in the State for the statutory period solely for the purpose of obtaining a divorce is not sufficient to give jurisdiction, but a bona fide residence with the intention of remaining must appear, and plaintiffs must bring themselves clearly and affirmatively within the jurisdiction of the court. And again, in Barber v. Barber, 47 Nev. 377 (39 A. L. R. 706, 22 Pac. 284), the Supreme Court of Nevada stated the sound rule that “domicile within Nevada” of one of the parties is essential to the power of the courts of that State to dissolve the marital bonds. Under these decisions^ which do not substantially differ from
Conceding, for present purposes, that there was no lack of jurisdiction in so far as the plaintiff is concerned, and that the Nevada decree conformed in all particulars to the constitution and laws of that State, is it necessarily enforceable in this State ? Fortunately that is not a new question. It arose in Haddock v. Haddock, 201 U. S. 562 (26 Sup. Ct. 525, 50 L. ed. 867). In that ease the husband and wife were residing in the State of New York. The husband went into the State of Connecticut, established a residence there, and obtained a decree of divorce. The validity of that decree became pivotal in determining property rights. Chief Justice White said: “A suit for divorce brought in a State other than that of domicile of matrimony, against a wife who is still domiciled therein, is not a proceeding in rem justifying the court to enter a decree as to the res, or marriage relation, entitled to be enforced outside of the territorial jurisdiction of the court. . . A personal judgment against a non resident — not a proceeding in rem — based merely upon constructive service, and therefore jurisdiction not being acquired over the defendant’s person, may not be enforced in another State under the full faith and credit clause. Pennoyer v. Neff, 95 U. S. 714 [24 L. ed. 565].” It should be noticed at this point that in the Haddock case the husband had in good faith acquired a domicile in Connecticut, and his decree of divorce was in
It seems to us that the court, in that case, pronounced sound law and sound public policy. We take it that in the paragraph quoted the statement that a divorce suit “is not a proceeding in rem justifying the court,” etc., means that it is not strictly a proceeding in rem. However, this State recognizes a suit affecting the marital status to he a suit quasi in rem. In Joyner v. Joyner, 131 Ga. 217, 223 (62 S. E. 182, 18 L. R. A. (N. S.) 647, 137 Am. St. R. 220), Mr. Justice Beck, in an elaborate opinion dealt with the question, where the residence in another State was conceded to be bona fide. The Haddock case was followed, with liberal quotations therefrom, as well as from other authorities. The court said: “A proceeding for divorce partakes of ‘the nature of proceedings in rem rather than of proceedings in personam, the res being the status. . . At the same time these causes can not be said to be altogether proceedings in rem. There is a personal element that enters into them, not found in suits instituted merely to subject or affect property. . . It results therefore that these causes constitute in some measure a dividing line between proceedings strictly in rem and proceedings strictly in personam, partaking
There is no basis in law or morals on which a divorce decree rendered in Nevada on the application of one spouse, the other remaining in the matrimonial domicile of Georgia, and where the plaintiff merely remained physically in that jurisdiction for a term of six weeks, can be recognized in this State on the constitutional doctrine of full faith and credit or on principles of the comity of states. The judge of the superior court in the present case, on the facts before him, being authorized to find that the husband had not acquired a bona fide domicile in Nevada, and having so found, necessarily treated the Nevada decree as a mere nullity. In De Bouchel v. Candler, 296 Fed. 482, Judge Sibley, of the Northern District of Georgia, dealt with a Nevada divorce decree under very similar facts. In that case, as in this, the defendant had actual notice of the pendency of the divorce • suit. The jurisdiction of
There is no obligation on the part of one state to recognize a judgment rendered in another that originated in a fraudulent intention maintained and carried out on the same basis. We thoroughly approve what was said by Stevenson, V. C., in Lister v. Lister, supra: “The authorities, I think, all sustain the proposition that there is no principle of comity which interferes with' the power of the State of New Jersey, in accordance with its well-settled law, to deny the right of any court in Nevada to determine the status of the defendant in this case in respect of marriage, or to decree that he is an unmarried man, unless he ceased to be a- bona fide resident of New Jersey and became a bona fide resident of Nevada. . . I have found as a matter of fact that the defendant did not lose his residence in New Jersey — never became a bona
Concurrence Opinion
concurring specially. We concur in the result reached in this case, because under the facts in the record the court of Nevada did not have jurisdiction of the cause, the defendant not having been a bona fide resident of that State as required by statute; and therefore the judgment rendered was void for lack of jurisdiction.
Note by the Court. Since the rendition of the above judgment, Michigan Law Review, Vol. 30, No. 2, December, 1931, has been received. On p. 285 thereof appear comments upon Fischer v. Fischer, 254 N. Y. 463, 173 N. E. 680. Our decision was in thorough harmony with that, a very similar case. In the Review just mentioned there is a pertinent discussion with numerous citations which are deemed of sufficient value to authorize the placing of the same here, in tlie nature of an annotation.