60 So. 6 | Miss. | 1912
delivered the opinion of the court.
Alma Sargeant Hester and her daughter, Oma Hester Smith, on October 12, 1910, filed their original bill in the chancery court of Sharkey county, seeking to recover from appellees, Bailey Cobb Hester and her children, certain real and personal property which had been ■owned by Charles O. Hester, deceased. The original bill'was amended by leave of court, and afterwards an amended bilí was filed.
It appears that Charles 0. Hester on'May 8, 1892, was legally married to Alma Sargeant Hester in Monroe ■county, Miss. On July 15, 1892, the daughter Oma Hester was born. The bill alleges that said Charles O. Hester took his wife and her child to the home of her father, Blufford Sargeant, and deserted her; that in October, 1893, Blufford Sargeant and his family removed to Oklahoma. On February 1, 1894, Charles 0. Hester filed a bill for divorce against his wife, Alma Hester. The decree of divorce was rendered on March 7th, 1894.
On the 10th day of June, 1895, Charles O. Hester married Miss Bailey Cobb. It is alleged in the bill that the publication of notice to the nonresident defendant, Alma S. Hester, was made in the Aberdeen Weekly, a newspaper published in Monroe county, and that the first publication was made on February 6, 1894, and therefore the publieaton only extended for nineteen days, and was not a sufficient notice under the law to the defendant. It will be seen that the entries on the general chancery docket show that the publication was made on February 2, 1894, and on that day a copy of the same was mailed to the defendant at Cavanell, I. T. The decree recites that the defendant was legally in court at the hearing of the case. The clerk of the chancery court in his certificate states that the file of the Aberdeen Weekly during February, 1894, had been lost. The
Appellees demurred to the bill of complaint, and therein set up as one ground of defense that the appellant Alma S. Hester should not be permitted after the lapse of so many years to claim that the divorce from her and the marriage by Charles 0. Hester to Bailey Cobb Hester were illegal, and that she should be estopped by reason of her laches. Another defense presented is that the decree of divorce in this case cannot be collaterally .attacked.
We will first consider the defense that this suit is a collateral attack upon the decree of divorce. It seems clear that the proceeding before us is a collateral attack. The attack is not made in the action wherein the decree was rendered, nor in an appeal from the action of the court in granting such decree; nor is it a proper suit brought for the sole purpose of declaring such decree void. The prayer in the amended bill is that appellants may “be decreed to be the owners of all the property described in the bill of which Charles 0. Hester died .seised and possessed.” It also asks for cancellation of the deed from Hester to his wife, Bailey Cobb Hester,
It appears well settled in tMs state that a decree like the one before us cannot be attacked by collateral proceedings. The entries on the record show, that all the proceedings were regular, and that the defendant was properly in court, and that the case was duly heard in open court upon evidence, and that such evidence was sufficient to- entitle the relief prayed for. Therefore the divorce was granted. All proceedings were adjudged by the court to be sufficient.
In the case of Cocks v. Simmons, 57 Miss. 183, wherein it was contended that a minor was not- properly brought into court by reason of the failure to summon his guardian, the summons being served on a person who was not, in fact, the guardian, George, C. J., said: “The court, however, in the order appointing a guardian ad litem for these minors makes this recital: ‘It appearing to the satisfaction of the court that subpoena or summons has been duly executed upon the minor defendants in this cause. ’ . . . Here is a distinct and unequivocal adjudication, made by the court, as to a matter upon which it was bound to make an examination and decision, as a prerequisite to the order which it was then about to make. Unless the court was satisfied that process had been duly served on the defendants, it was bound not to make an order appointing the guardian ad litem, and it was bound also to arrest the proceedings in the cause until such process was served. Under such circumstances, the recital in the order must be held to be the solemn ajudication of the court that process had been duly served. . .. It fe well settled that in ' collateral proceedings such a decision is conclusive of the
As we hold that the appeal in this case collaterally attacks the divorce proceedings, and that such collateral attack cannot be made, it is unnecessary for us to decide the contention that appellant Alma S. Hester should be estopped by reason of her long acquiscence in the matter and her failure to make any effort to set aside the divorce. From the record it seems that- a divorce was regularly obtained, that Hester remarried, and that he has since reared a family of children.
A setting aside of the divorce at this time would render his second marriage and his living with his second wife illegal, and a violation of the laws of the land, and would render illegitimate the children born of the second marriage. We must consider that these children are innocent, and that it is the policy of the law, as far as possible, to preserve a status that would keep these children as the legitimate offspring from a legal marriage. Therefore the proof of the illegality of the divorce and of the second marriage should be clear and sufficient beyond question before the court would be justified in deciding that appellant Alma S. Hester was still the legal wife of Charles O. Hester when he died, and that his only legal child is her daughter, Oma Hester Smith. Her failure for the long number of years to assert any rights as the lawful wife of Charles 0. Hester and to make any active opposition to the validity of the divorce and his remarriage demonstrates the wisdom of the doctrine announced in the foregoing cited cases relative to collateral attack.
The chancellor was correct in sustaining the demurrer and rendering his final decree in this case.
Affirmed.