62 So. 706 | Ala. | 1913
Lead Opinion
Appellant filed her bill in the lower court for the purpose of enjoining the execution of a writ of possession issued against her in an ejectment suit in the Jefferson circuit court, wherein appellee-recovered a judgment against her for land which was the homestead of her deceased husband in his lifetime, and further to annul a certain decree of said court divorcing her from her said husband, and to declare her the owner of said property. The equity of the bill, in one or more essential aspects depends upon the alleged nullity of the decree of divorce or its nullification here for sufficient reason, and we address our discussion first to that essential proposition. Its invalidity is predicated upon three grounds: (1) It was procured by collu
As to the charge of collusion and fraud in instituting the proceeding and procuring the decree, the bill is an original bill in the nature of a bill of review, which, in proper cases, may be maintained for the impeachment of such decrees. — Ex parte Smith, 34 Ala. 455; McDonald v. Pearson, 114 Ala. 630, 21 South. 534; Ch. Prac. rule 83. As to the second charge stated above the purpose of the bill seems to be that of a bill of review for error apparent on the record. — McCall v. McCurdy, 69 Ala. 65.
The allegations of paragraph 2 of the bill show that complainant “permitted” her husband and the attorney named to institute the proceeding for divorce, “being-in fear of her husband, and not knowing what to do”; and further that within a day or two she went away from Birmingham and had nothing more to do with the case. It does not appear that she ever made any inquiry as to the course of the suit or ever exhibited any interest therein until after the death of her husband;
Where it appears that the plaintiff in whose favor a judgment has been rendered has expressly or impliedly authorized the prosecution of the suit in his name, and it is sought in his behalf to set aside the judgment because of duress in the procurement of such authorization, such duress must be shown by clear, unequivocal averment and supported by clear and convincing proof; and there must be no lack of reasonable diligence to avoid the results complained of. The allegations of the bill in this particular are not sufficient against the demurrer.
A decree of divorce, though procured by the collusion of the parties, is not therefore void, and neither of the guilty parties is entitled as of right to have the decree set aside on that ground. “By the weight of authority a divorce obtained by collusion between the parties is binding on both and may be impeached by neither.”— 14 Cyc. 717 (II). Thought, on the ground of public policy, it is said to be the better rule to set aside a collusive judgment, if the application be seasonably made in good faith and not from any expected personal advantage. — 15 Cyc. 718, note 46, citing the authorities. But in general courts will not entertain such an application when made by the successful party who had
We conclude, therefore, that the allegations of the bill with respect to duress, fraud, and collusion are insufficient, and, so far as that aspect of the bill is con cerned, the demurrers were properly sustained.
The second ground of impeachment is clearly without merit. The record shows that after decree pro confesso the amendment was filed upon leave granted by the court and with the written consent of the respondent husband, Avho Avas represented then by the same solicitor who here represents the complainant. If there was any irregularity in the practice pursued, it is certainly not available to the complainant who had the benefit of it.
In support of the third ground of impeachment, counsel for appellant cites the case of Adams v. Wright, 129 Ala. 305, 30 South. 574. In that case the guardian of a minor filed a petition in chancery praying for a writ of habeas corpus and for a decree aAvarding to him the custody of the minor’s person. The cause was submitted to the chancellor in vacation, and a final decree was rendered in vacation denying the relief and dismissing the petition. On appeal to this court it was held that the decree was void upon its face and would not support an appeal. This ruling is founded on the principle that a judgment rendered at a time or place not authorized by Iuav for the session of the court is the act merely of the judge and not of the court, and hence it is no judgment at all— Ex parte Branch, 63 Ala. 383; Freeman on Judgments, § 121.
The decree noAV before us is one rendered by a superior court of general jurisdiction in a cause as to which its special statutory jurisdiction of the subject-matter was invoked by appropriate complaint and aver
The decree being rendered after jurisdiction had attached, every reasonable presumption will be made in favor of its validity on collateral attack. If such a decree could not be rendered at all except during term time, and the record showed it was rendered during vacation, it would of course be void upon its face and would be so declared even on collateral attack. But, with respect to all chancery decrees, the written agreement of the parties filed by them in vacation authorizes the submission of a cause and the rendition of a final decree in vacation. — Ch. Pr. rule 79. And when a decree pro confesso has been taken in a divorce case, and the cause is ready for submission, without defense interposed, the Code requires the rendition of a final decree in vacation upon complainant’s written request to the
While it would be highly appropriate for such a consent or request to be recited in a decree rendered pursuant thereto in vacation, the absence of such a recital does not invalidate the decree. It is reasonable to presume that no judge or chancellor would render a final decree in vacation without authority of law, and also that in this case he has done so only in pursuance of a consent or request actually made in accordance with law. — 2 Freeman on Judgments, § 565. When this presumption is not expressly contradicted by the record, it is not subject to contestation on collateral attack. As said by Brickell, C. J., in Burnett v. Nesmith, 62 Ala. 261, 265: “Whatever within the jurisdiction is done will be presumed rightful until the contrary is shown. Facts which must have been ascertained by the court to exist, and upon the existence of which the regularity of its action depends, will be conclusively presumed to have been ascertained unless the record affirmatively discloses the contrary.” In accord with this doctrine are the cases of Coltart v. Allen, 40 Ala. 155, 88 Am. Dec. 757; State v. M. & G. R. R. Co., 108 Ala. 29, 31, 18 South. 801; Pettus v. McClannahan, 52 Ala. 55; Burke v. Mutch, 66 Ala. 568; and many others.
In this state it is settled that any attempt to' impeach and annul a judgment other than by a direct appeal, or by a "direct proceeding in the court that rendered the judgment, before the expiration of the term at which it Avas rendered, is a collateral attack. — Friedman v. Shamblin, 117 Ala. 454, 466, 23 South. 821. This, of course, does not deny the well-settled jurisdiction of equity to revieAv judgments founded on fraud, accident, or mistake and to review final judgments and decrees in a few cases as prescribed by statutes. But, in the as
The case of Adams v. Wright, 129 Ala. 305, 30 South. 574, is opposed to the principles above quoted in so far as it holds that the judgment there appealed from is void upon its face, and to that extent it will be overruled.
The averment that the decree in question was never enrolled does not show that it is not a valid decree. For while enrollment by incorporation into the minutes of the court furnishes the only memorial by which an operative decree can be properly proved, nevertheless enrollment does not make the decree nor does its omission destroy it. It is of course true that when a decree is rendered in vacation it is not enough that it is reduced to writing and signed by the judge. It must also be filed by him with the register for enrollment as a decree. When this is done it is, at least potentially, the decree of the court. — Harper v. Raisin Fertilizer Co., 158 Ala. 329, 48 South. 589, 132 Am. St. Rep. 32; Hudson v. Hudson, 20 Ala. 364, 56 Am. Dec. 200; Pittsburg Steel Co. v. Streety, 60 Fla. 183, 53 South. 505.
It is to be noted also that, even were this decree void on its face, a court of chancery would not.for this reason take jurisdiction of a bill to so declare it. Application should be made to the court that rendered the decree. — Morgan v. Lehman & Co., 92 Ala. 440, 9 South. 314; Martin v. Atkinson, 108 Ala. 320, 18 South. 888.
In one of its aspects, the bill seeks to permanently enjoin the execution of a judgment in ejectment for the possession of the property recovered against her by respondent. The right to that relief will depend upon a showing that the decree of divorce was obtained by a
The only averments to support the second alternative, even were the decree shown to be void on its face (which we have seen is not shown), are that a plea of not guilty was filed by complainant in the ejectment suit, “but by some mistake the said plea was not entered in said cause,” and without her or her attorney’s knowledge the case was placed on the default docket and judgment taken three months after the suit was filed; and one month later a writ of possession was issued thereon. It does not appear who was at fault in the matter, or in what way, and the reasonable inference from these averments is that complainant, or her attorney, was utterly neglectful of the defense of the case and indifferent to the result complained of. In short, no equity is apparent in this phase of the bill.
One ground of demurrer to the bill is that the solicitor now appearin g as counsel for complainant appears to have acted as solicitor for the respondent in the divorce suit and ought not to be allowed in this proceeding to act as solicitor for complainant and thereby stultify his former conduct. Whatever of merit there may be in this contention, it is not a good ground of demur
The demurrer, as a whole, was properly sustained, and the decree will be affirmed.
Affirmed.
Concurrence Opinion
concur in the affirmance. They hold, however, that the decree of divorce cannot be supported by presumptions; that the averments of the bill show it to be void on its face; and that even on collateral attack it must affirmatively appear that the decree was rendered by written consent of the parties under chancery rule 79, or upon complainant’s written request under section 3164. On this proposition they dissent from the majority decision and adhere to the principle declared in Adams v. Wright, 129 Ala. 305, 30 South. 574.