Conklin v. Conklin

148 Ga. 640 | Ga. | 1919

George, J.

(After stating the foregoing facts.) In the view we take of this case it is unnecessary to consider and decide the several grounds raised by the special demurrers, and for that reaEson we have omitted from the statement of facts the allegations of the petition charging in detail the formation of the conspiracy, and the several acts of the various defendants in the execution of it, particularly those allegations against the defendant corporations, made for the purpose of showing their- connection with the conspiracy..

The constitution of this State provides: “Divorce cases shall be brought in the county where the defendant resides, if a resident of this State; if the defendant be not a resident of this State, then in the county where the plaintiff resides.” Civil Code, § 6538. The petition in the divorce suit alleged that the plaintiff, George H. Conklin, was a resident of Kichmond county, Georgia; and that the defendant, Mary Greer Conklin, had returned to her former home in Winfield, Cowley County, Kansas, but that when last heard from she was residing in the city of Chicago, State of Illinois. That petition therefore alleged that the defendant in that suit was a non-resident of the State. Section 2951 of the Civil Code provides: “The action for divorce shall be by petition and process, as in ordinary suits, filed and served as in other cases, unless the defendant be non-resident of this State, when service shall be perfected as prescribed in this Code in causes in equity.” Section 5552 of the Civil Code requires the clerk of the court to annex to every petition, Unless the same be waived, a process signed by the clerk or his deputy, bearing test in the name of a judge of a court, and directed to the sheriff or his deputy, requiring the appearance of the defendant at the return term of the court. Section 5553 provides: “If the defendant in an equitable proceeding does not reside in the State, service 'of the petition or any order of the court may be made by publication.” Sections 5556 and 5557 provide for the manner and mode of service of the petition on a nonresident defendant by publication. Under these sections the judge of the court in which the suit is pending may order service to be perfected by publication in the paper in which the sheriff’s advertisements are printed, twice a month for two months. The. published notice shall contain the name of the parties plaintiff and defendant, with a caption setting forth the court and term and character of the action, and a notice directed and addressed to the party defendant, commanding him to, be and appear at the next term of the court, and shall bear test in the name of the judge and be signed by the clerk of the court. Where the residence or abiding place of the non-resident is known, the party obtaining the order for the service of the petition by publication shall file in the office of the clerk, at least thirty days before the term next after the order for publication, a copy of the newspaper in which said notice is published, with said notice plainly marked; and thereupon the clerk of the court shall at once enclose, direct, stamp, and mail said paper to said party named in said order, and make an entry of his action on the petition. Under section 5558 it is made the duty of the judge trying the case “to determine whether such service has been properly perfected, and to write an order to that effect upon the petition in said case as showing service thereof, which shall also be entered upon the minutes of the court.” The provisions of sections 5556, 5557, and 5558 were, according to the allegations in the present suit, fully complied with in the divorce ease. The plaintiff in the present suit alleges in effect that she received the notice as required by the code section, and she makes no attack upon the validity of the several sections of our code providing for service by publication upon a non-resident party defendant. Moreover, she admits actual notice of the pendency of the divorce case, and alleges that she was advised by the plaintiff in that ease and one of the alleged conspirators that the suit was brought upon the ground that she had deserted her husband. We are of the opinion that as defendant in the divorce case referred to she was served with the notice of the suit and process of the court as required by the laws of this State.

It is to be observed that she did not desert her husband. . It is true she consented to leave him, “as a relief from the horrors of the condition in which she found herself,” and to go to a summer hotel, according to the allegations of the petition. She distinctly alleges that the separation was due to her husband’s “drunkenness and his cruelty to her.” She therefore knew that her husband was seeking a divorce upon a false groúnd; conceding that she was ignorant, as a matter of fact, of the requirement of the law of this State, that desertion, in order to constitute a ground for divorce, must be continuous for a term of three years. She cer-' tainly knew that she had not wilfully deserted her husband, and under our code (§ 2945) “willful and continued desertion by either of the parties for a term of three years” shall be sufficient to authorize the granting of a total divorce. If the husband by his conversation and conduct compelled the wife for her safety to leave him and his home, he, and not the wife, was guilty of wilful desertion. In no event, according to the allegations of the petition, can it be said that Mrs. Conklin deserted her husband. We do not hold that the divorce suit referred to in this case was a collusive one, because, so far as disclosed by the petition, she did not consent to the bringing of that suit, nor did she in any wise assist, encourage, or aid in its prosecution. She did, however, exercise the legal and moral right to keep silent when she was confronted with the knowledge that her husband had brought the suit for divorce against her upon a false ground. So far as she now discloses, she was willing that the husband be granted a divorce upon the ground that she had deserted him. Indeed, her only complaint is that the husband sought and obtained a divorce upon the false ground of the mental incapacity of the wife at the time of the marriage. Our conclusion is that she is in no position to ask a court of equity to set aside a decree for divorce which she understood was to be granted upon a false ground, merely because a decree was in fact granted upon a different ground which she also alleges to be unfounded and untrue in fact. It is true that the charge in the petition for divorce, of the mental incapacity of the wife at the time of the marriage, is a serious charge and one calculated to do the wife much harm if in fact untrue. If the wife was mentally capable of contracting at the time of the marriage, as she insists, and if the suit was brought as a result of a conspiracy and the divorce obtained upon false 'testimony, as charged in the petition, the wife has been grievously wronged. The fact remains, however, that she knew of the suit, had legal notice of the pendency of the suit, makes no attack upon the constitutionality of the statute providing for service of such notice by publication, and can not now be heard to complain that the judgment which she knew was being sought upon a false ground was obtained upon a different ground. She is precluded by her laches. Had the husband, or any one acting for him, represented to her that the divorce suit would be dismissed, or that no judgment or decree would be taken therein, the present ease would be different. The plaintiff here would then occupy the position of a suitor who had been misled by the fraudulent conduct of the opposite party; and if she had a valid defense to the suit, equity would grant her the relief now prayed, and place her in position to defend that suit. It is to be noted that she does not now complain of the decree, but her complaint is directed to the allegations of the petition and the proof in support thereof upon which the decree was in fact ■ rendered.. She does not occupy the position of a diligent litigant, with a valid defense to an action, who has been misled by the fraud of the opposite party and thereby prevented from making that defense. If she stood in that position, she might invoke the aid of a court of equity.

From the foregoing it follows that the decree in the divorce case, rendered on October 28, 1903, in Richmond superior court, is a valid decree binding upon both parties thereto. Nothing alleged in the petition will enable the plaintiff to have that decree canceled. If, therefore, a wrong was committed upon her by the several defendants named therein, it must be' held that her lack of knowledge of all the matters and things of which she now complains, and her failure to defend the suit, were due to negligence; and she can not now, after the lapse of fourteen years, maintain the present suit either for cancellation of the decree or for recovery of damages for the alleged tort. The demurrers to the petition were properly sustained, in our opinion, for the reasons stated.

Judgment affirmed.

All the Justices concur.