9 S.E.2d 834 | Ga. | 1940
Lead Opinion
In Watts v. Watts, 130 Ga. 683 (61 S. E. 593), it was held: “The venue of a divorce suit, where the plaintiff and the defendant reside in different counties in this State, is the county of the residence of the defendant, (a) Where both parties reside in different counties in this State, the defendant in a divorce suit can not, by acknowledgment of service and agreement that the case be tried in the county of thé residence of the plaintiff, confer power upon the court to render a valid judgment. (6) Where, for reasons indicated in the preceding divisions of this headnote, the court is without jurisdiction of a divorce suit, and the defendant attempts, by waiver or consent, to confer jurisdiction, the trial judge may upon his own motion dismiss the suit, even after the rendition of the first verdict finding in favor of the grant of a divorce.” As pointed out above, the divorce suit was on trial, and the case had not proceeded to decree of divorce as in the instant case. Consequently the quoted decision is not binding as a precedent in the instant ease, where the divorce case had proceeded to a decree, and the attack is upon that judgment. But the principles of that decision are nevertheless applicable to the instant case. They were thus stated in the opinion: “In actions which are strictly personal, where the interests of third persons are not affected, a defendant may ordinarily waive the jurisdiction over his person, where the court has jurisdiction over the subject-matter. Civil Code, §§ 5079, 5080 [Code of 1933, §§ 24-112, 81-503], Ansley Co. v. O’Byrne, 120 Ga. 618 (48 S. E. 228); Epps v. Buckmaster, 104 Ga. 698 (30 S. E. 959). The plaintiff in error contends
In Odum v. Odum, 132 Ga. 437, 439 (64 S. E. 470), it was said: “It is true that in a suit for divorce jurisdiction of the court can not be waived so as to permit a suit for divorce to be brought in a county other than that of the residence of the defendant.” Citing Code, § 10 [§ 102-106], and Watts v. Watts, supra. In Jones v. Jones, 181 Ga. 747 (184 S. E. 271), alimony founded on a divorce suit was awarded the wife. In a proceeding for contempt in failing to pay the alimony the husband was adjudged in contempt, and the judgment was reversed. The following headnotes reveal the case and decision: “1. In a court which has jurisdiction of the subject-matter of a suit, jurisdiction of the person may be acquired of one who voluntarily waives his right to object and submits himself to the jurisdiction of the court. To this general rule cases of divorce and alimony present exceptions. The petitioner in an action of divorce carries the burden of proving the jurisdiction of the court; and this duty is no less incumbent upon the defendant who asks for alimony. In neither instance can jurisdiction be conferred by consent or by waiver. 2. By constitutional provisions, statutory enactments, and judicial pronouncement, a public policy has been declared and enforced, looking to the use of the closest scrutiny in all eases that affect the severance of the matrimonial
In the opinion by Mr. Chief Justice Russell, it was said, in part: “The question as to the validity of the judgment or decree upon which the alimony in this case is based is necessarily controlling. If the court was without jurisdiction to render the judgment, it!is .void; and the question arises as to whether there is any legal proceeding that can breathe life into a corpse. Art. 6, sec. 16, par.: 1, of the constitution declares that ‘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 in which the plaintiff resides.’ It appears from the petition upon which the final decree of divorce and alimony is based that it was alleged that. ‘Anna D. Jones is a non-resident of the State of Georgia (but petitioner does not know the city or town in which she resides).’ Also, ‘Petitioner was then and has been since, a bojua fide resident of the State of Georgia twelve months next before the
“Then, did the court have jurisdiction? For without jurisdiction the judgment is void. Even if the wife were willing to submit to the jurisdiction of the superior court of Bibb County, and if the husband selected it as the forum in which he desired to bring his suit, the question arises whether they could confer jurisdiction by consent in a case of divorce, where under the policy of the law a divorce by consent or collusion is never granted. If the plaintiff wished to bring a suit against his wife for divorce, and she was not a non-resident of the State, he would have to proceed in the county of her residence in order to procure a valid divorce. The statement of the petitioner and the denial in the answer, without anything further appearing on the face of the proceeding, merely doubled the doubt and confusion as to which court in Georgia had jurisdiction. Jones asserts that the court should not have attached him for contempt, because the original judgment is void. Counsel for the defendant in error assert with skill and great vehemence that the judgment is not void, or, if originally for any reason void, that it has been ratified by the payment of alimony on several occasions; and that the ruling of the court on a prior effort to modify the judgment is now res judicata, and the respondent, not having taken exception to that judgment, is bound thereby. The Code of 1933, § 110-709, declares that ‘The judgment of a court having no jurisdiction of the person or subject-matter, or void for any other cause, is a mere nullity, and may be so held in any court when it becomes material to the interest of the parties to consider it.’ In Towns v. Springer, 9 Ga. 130, it was said: ‘The assailability of a judgment of a court of competent jurisdiction for 'irregularity [italics mine] is one thing — of a judgment of a court not having jurisdiction, for the want of jurisdiction, is a very different
As indicated above, neither of the cited cases was a suit in equity, as in the instant case, seeking to declare verdicts and a decree of divorce void and of no effect, on the ground that the court granting the divorce was without jurisdiction. In McConnell v. McConnell, 135 Ca. 828 (70 S. E. 647), and Fuller v. Curry, 162 Ga. 293 (133 S. E. 244), the principles announced above were recognized, but on the principle of estoppel it was held that the defendant, who had participated in the divorce suit by acknowledging service and jurisdiction of the court, could not afterward come into equity and ask the affirmative relief of setting aside the verdicts and decree for want of jurisdiction. In the McConnell case it was said that in the circumstances the plaintiff in the equity suit did not come with clean hands. This is different from the instant case, where no such facts appear upon which to deny the defendant entry to the court of equity. The case on demurrer stands on the allegation of the petition charging want of jurisdiction because the defendant, a resident of this State did not reside in Fulton County when the suit for divorce was instituted. In the face of such allegation, no presumption of jurisdiction can prevail on the basis of the verdicts and decree of divorce. The equitable suit is in the same court, and between the same parties, as the divorce suit had been, and is a direct attack on the verdicts and decree of divorce. Compare Bowers v. Dolen, 187 Ga. 653 (2) (1 S. E. 2d, 734);
Judgment affirmed.
Lead Opinion
1. In the instant case the proceeding is not a statutory motion for a new trial, as provided for in the Code, § 70-301, or the equivalent of such a motion, such as a direct exception to a verdict and decree. Code, § 6-804; Lovelace v. Lovelace,
2. Neither is the proceeding a statutory motion to set aside a judgment, as provided in the Code, § 37-219, which authorizes, among other things, setting aside of judgments on account of defects appearing on the face of the record.
3. The proceeding is an original suit in equity for a decree declaring void and of no effect the first and second verdicts and the decree in the divorce suit. The alleged grounds of relief are, (1) that the court was without jurisdiction of the case, because at the time of the filing of the suit for divorce the defendant was a resident of Clayton County, whereas the suit was brought in Fulton County; (2) that on the strength of the husband's repeated statements to the wife "that he was not going through with the divorce," they resumed their marital relations by cohabitation which was continued until the time of the decree; (3) that the last verdict was obtained by perjured testimony.
4. According to the allegations of the petition, the superior court of Fulton County did not acquire jurisdiction in the suit for divorce. The alleged want of jurisdiction was a sufficient ground of attack upon the verdicts and decree of divorce as void and ineffectual.
5. The allegations as to repeated statements of the husband to the wife after suit for divorce was filed, and continued cohabitation in recognition of the marital relations until the husband informed the wife of the decree, were sufficient as grounds of fraud for setting aside in equity the decree of divorce. Hall v. Lockerman,
6. It is not ground for declaring void and of no effect a decree of divorce that it was based on perjured testimony, where it does not appear that the witness delivering the testimony has been convicted of the offense of perjury. Code, § 110-706; Elliott v. Marshall,
7. The petition alleged a cause of action as based on the first and second grounds of attack upon the verdicts and the decree; and consequently the action was not subject to dismissal for the reason that the third ground of attack upon the decree was insufficient.
In Odum v. Odum,
In the opinion by Mr. Chief Justice Russell, it was said, in part: "The question as to the validity of the judgment or decree upon which the alimony in this case is based is necessarily controlling. If the court was without jurisdiction to render the judgment, it is void; and the question arises as to whether there is any legal proceeding that can breathe life into a corpse. Art. 6, sec. 16, par. 1, of the constitution declares that `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 in which the plaintiff resides.' It appears from the petition upon which the final decree of divorce and alimony is based that it was alleged that `Anna D. Jones is a non-resident of the State of Georgia (but petitioner does not know the city or town in which she resides).' Also, `Petitioner was then and has been since, a bona fide resident of the State of Georgia twelve months next before the *451 filing of this application.' These are the only paragraphs of the petition which allege the residence of either party or throw any light on the subject of jurisdiction. An examination of the record shows that there was no service upon the defendant as a nonresident, by publication or otherwise. The wife, however, appeared in person and by attorney at the time of trial, and filed an answer in which she denied the allegation that she was a non-resident of Georgia. Upon these pleadings the case went to trial, and two consecutive verdicts were rendered granting the divorce as prayed for; and the second verdict was followed by the grant of alimony to the wife.
"Then, did the court have jurisdiction? For without jurisdiction the judgment is void. Even if the wife were willing to submit to the jurisdiction of the superior court of Bibb County, and if the husband selected it as the forum in which he desired to bring his suit, the question arises whether they could confer jurisdiction by consent in a case of divorce, where under the policy of the law a divorce by consent or collusion is never granted. If the plaintiff wished to bring a suit against his wife for divorce, and she was not a non-resident of the State, he would have to proceed in the county of her residence in order to procure a valid divorce. The statement of the petitioner and the denial in the answer, without anything further appearing on the face of the proceeding, merely doubled the doubt and confusion as to which court in Georgia had jurisdiction. Jones asserts that the court should not have attached him for contempt, because the original judgment is void. Counsel for the defendant in error assert with skill and great vehemence that the judgment is not void, or, if originally for any reason void, that it has been ratified by the payment of alimony on several occasions; and that the ruling of the court on a prior effort to modify the judgment is now res judicata, and the respondent, not having taken exception to that judgment, is bound thereby. The Code of 1933, § 110-709, declares that `The judgment of a court having no jurisdiction of the person or subject-matter, or void for any other cause, is a mere nullity, and may be so held in any court when it becomes material to the interest of the parties to consider it.' In Towns v. Springer,
As indicated above, neither of the cited cases was a suit in equity, as in the instant case, seeking to declare verdicts and a decree of divorce void and of no effect, on the ground that the court granting the divorce was without jurisdiction. InMcConnell v. McConnell,
Judgment affirmed. All the Justices concur.
JENKINS and DUCKWORTH, JJ., concur in the judgment of affirmance, but dissent from the ruling that the allegations of the petition stated a cause of action on the ground that the court rendering the divorce decree was without jurisdiction.
Concurrence Opinion
concur in the judgment of'affirmance, but dissent from the ruling that the allegations of the petition stated a cause of action on the ground that the court rendering the divorce decree was without jurisdiction.
