32 S.E.2d 790 | Ga. | 1945
Where the husband obtained a decree of divorce in Mississippi and there was no service, except by publication, upon the wife who resided in Georgia, in a subsequent suit by the wife against the husband in Georgia for alimony, she could, without offending the full faith and credit clause of the constitution of the United States, collaterally attack the Mississippi decree upon the grounds of lack of jurisdiction and fraud in its procurement.
The evidence upon the interlocutory hearing was sufficient to authorize a jury to find that the collateral attack on the Mississippi decree was sustained, and to authorize the trial judge to regard it as a nullity; and the judgment excepted to, awarding temporary alimony, being otherwise valid the court did not err in rendering the same.
Upon an interlocutory hearing of an application for temporary alimony, evidence was introduced showing that the husband filed a suit for divorce against the wife in the superior court of Laurens *740 County, Georgia, on October 6, 1942, in which he alleged that he was at that time a bona fide resident of the said State and county. The evidence further showed that he filed a suit for divorce against his wife in the Mississippi court on April 3, 1943, in which he alleged that he had been a bona fide resident of the State of Mississippi for a period of one year immediately preceding the filing of that suit, and that he did not know where the wife resided and did not know her mailing address. The suit resulted in a decree of divorce in favor of the husband on May 18, 1943. The petitioner also introduced in evidence section 2736 of the 1942 Code of Mississippi, which provides that jurisdiction in suits for divorce shall be limited to cases: "(a) Where one of the parties has been an actual bona fide resident within this State for one year next preceding the commencement of the suit. (b) In any case where the proof shows that a residence was acquired in this State with a purpose of securing a divorce, the court shall not take jurisdiction thereof, but dismiss the bill at the cost of complainant." There was evidence also to the effect that the defendant Marchman registered under the selective-service law in Laurens County, Georgia, and was, on June 8, 1942, ordered to report to the Childersburg, Alabama, board for induction on June 17, 1942. Also introduced in evidence was a letter dated June 7, 1942, mailed to Childersburg, Alabama, and addressed to Mrs. H. L. Marchman, the letter beginning with the words, "Dearest H. L. Jr. and Irma." A witness testified that this writing was that of the defendant husband. The exception here is to the interlocutory judgment awarding the wife temporary alimony of $50 per month and asserting that the Mississippi divorce decree is void. (After stating the foregoing facts.) The only attack made upon the judgment excepted to is that it offends the full faith and credit clause of the constitution of the United States (Code, § 1-401), in that it fails to recognize the validity of the decree of divorce granted to the defendant by the court of the State of Mississippi. Upon the answer to this question depends the decision in the present case.
The decisions of this court up to this time have uniformly held that the full faith and credit clause of the constitution of the United States and the act of Congress enacted in pursuance thereof *741
(28 U.S.C.A., § 687) have no application to a decree of divorce where the defendant in the divorce action was a non-resident, made no appearance, and the only service had was by publication; and that such a divorce decree is subject to a collateral attack showing that the court rendering the same was without jurisdiction or that the petitioner therein procured the decree by the perpetration of a fraud upon the court rendering the same. Joyner v. Joyner,
Since the question here involves the constitution and laws of the United States, this court must accept the interpretation placed thereupon by the Supreme Court of the United States. That court in Haddock v. Haddock,
Judgment affirmed. All the Justices concur.