Hester v. Hester, 60 So. 6

Hester v. Hester

60 So. 6 | Miss. | 1912

Reed, J.,

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. *25All the papers in the case were lost, and- the files show only the jacket, which contained no papers. The following is a copy from the general chancery docket: “General Chancery Docket No. 3. No. 2846. C. O. Hester v. Alma Hester. Geo. C. Paine, Atty. Feb. 1 — 94, Bill filed; Feb. 2, Affidavit filed and publication made to defendant at Cavanell, I. T. Copy of publication mailed to defendant. M. 7, Decree of divorce 339. C. O. Hester v. Alma Hester. February term 1894. The clerk will set this cause down for hearing on bill, proof of pubilication, and proof. Geo. C. Paine, Sol.” The minutes of the court show the following decree: “This day this cause came 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. ”

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 *26.appellants also allege in their amended bill that the decree of divorce had been obtained through false and perjured testimony, and claim that the divorce was null and void. In the original bill it was shown that appellant Alma S. Hester had knowledge of the divorce and the marriage to appellee Bailey Cobb Hester in one or more years after the happening of the events. The amended bill states that it was one or more years after she left Mississippi before she heard of the marriage to Bailey Cobb Hester, and that she did not know of the divorce until after the death of Charles 0. Hester. It appears that several children were born to Charles O. Hester and Bailey Cobb Hester, and that he moved to Sharkey county, and there accumulated property, including the plantation which he afterwards conveyed to his wife, Bailey Cobb Hester.

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, *27and it prays for a division of Ms estate, for an accounting of the revenues from the estate, for preservation of the' funds and property, and for general relief. It will be noted, therefore, that the bill was not a direct, but only a collateral, attack upon the divorce proceedings and decree.

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 *28jurisdiction of the court. Whether the court had the-proper evidence before it on which to base such a decision cannot be inquired into collaterally, for that would be a question of error or no error, which manifestly can be entertained only in a court sitting to review the proceedings. This rule is absolutely essential, in order that faith and credit may be accorded by the community to the decrees and judgments of courts of record; and that-parties acting in obedience to them, or acquiring rights-under them, may have the confidence and repose flowing from á conviction that the solemn judgments and decisions of the higher courts, so long as they remain unreversed, will not be disregarded. It is attempted to weaken the force of this position by the suggestion that no-man should be bound by a judgment of which he had no notice, and therefore no opportunity of resisting; and that, if he were denied the opportunity of showing that he had no notice by a decision made in his absence, that would be confessedly binding him, as to that decision, without notice. But it may be replied that all proceedings in courts of justice are based upon the confidence that the officers of the law, the clerks and sheriffs-as well as the judges, will do their duty, and in all their official acts conform to truth and justice.” The ease of Railway Co. v. Thomas, 86 Miss. 27, 38 South. 770, in which certain proceedings in the federal court for foreclosure of a trust deed were attacked collaterally, and and in which it was contended that there was not a sufficient publication of notice, the court, speaking through Williamson, Special Judge, said: “The defects charged in the bill of complaint against the records in the federal court cases amount to irregularities only in the course of judicial proceedings, and do not render the proceedings void nor the decree open to collateral attack. Irregularities in permitting amendments to the bill for the purpose of bringing in other parties, and the ordering of publication without formal affidavit, and the insufficiency of publication, as charged in complainant’s bill, must *29be remedied by direct proceedings in the court which tried the cause or by appeal to a higher court. The record shows there was some notice to the third bondholders, but charges it was not sufficient, because published for four- weeks only. This is a collateral attack for irregularity, and cannot be permitted.”

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.