30 S.E.2d 108 | Ga. | 1944
Lead Opinion
The ruling made in the first division of the syllabus appears to be directly and fully controlled by the recent case of Hicks v. Hicks, supra, therein quoted from, as concurred in by five justices. It is in harmony with a full-bench
Save for certain exceptions in favor of creditors or bona fidepurchasers, the general rule is that none but the parties to a judgment, regular on its face, can move for its nullification. The rule-applies with peculiar force in matters of divorce which, although, not favored by the policy of the State, may after being granted affect the rights and interest of innocent persons. Axtell v. Ax-tell, 183 Ga. 195, 197 (187 S. E. 877). The fundamental exception to this general rule with respect to who is entitled to attack a. judgment regular on its face, is privity. This is the rule recognized by the Code, § 37-213, which provides: “Equity will grant-relief as between the original parties or their privies in law, in fact, or in estate, except bona fide purchasers for value without: notice. As to cases of this character, see Williams v. Lancaster, 113 Ga. 1020 (6) (39 S. E. 471); McArthur v. Matthewson, 67 Ga. 134 (4).
Nor is a different rule to be applied or a different conclusion to-be arrived at in this case merely because the plaintiff alleges that he occupies the status of a creditor, in that he has heretofore paid to the divorcee with whom he subsequently contracted marriage certain amounts of alimony, which he says he is in good conscience-entitled to recover by reason of the fact that his marriage to the divorcee is illegal in that his spouse had never been legally divorced from her first husband, and that the divorce was obtained by fraud because of untrue allegations and proof with respect to her residence at the time the suit was instituted. While it is true that under the provisions of the Code, § 110-711, creditors may attack a judgment for' any defect appearing on the face of the record, or for fraud or collusion wherever it interferes with their rights, either at law or in equity, and while it is also true as stated in the Thomas case, supra, that the direct nature and character of an independent attack on a judgment, not void on its face, is not changed by the fact that such a proceeding may seek other incidental relief besides the main purpose of setting aside the judgment, still an attack on a judgment regular on its face must be taken as collateral, where
Since, as ruled in the first division of the syllabus, if the previous .judgment of divorce, in nowise concerning the present plaintiff, be 'treated as valid on its face, the present plaintiff, a stranger to that -proceeding, is not a proper person to attack it, and since, as ruled fin the second division of the syllabus, if it should be said that the previous judgment of divorce is void on its face, the present plain■tiff will not be heard to invoke equitable remedies when he would 'be able to attack it anywhere or at any time, the petition, under ■either view, failed to set out a cause of action and -was properly • dismissed on demurrer.
Judgment affirmed.
Rehearing
ON MOTION FOR REHEARING.
In his motion for rehearing the movant quotes the Code, § as follows: “Fraud will authorize equity to annul conveyances, however solemnly executed, and to relieve against awards, judgments, and decrees obtained by imposition.” The provisions • of this section, under the ruling made in the first division of the syllabus, which was a direct quotation from a previous decision of This court, would not authorize the procedure taken.
The motion makes the following statement: “Movant contends That in rendering said decision the court overlooked the fact in the ■record that it is unequivocally charged in the original petition that fit was the defendant in error’s fraudulent purpose and intention fin filing and securing her fraudulent divorce to perpetrate a fraud ■on any man she might subsequently determine to marry, and to put ¡herself into a position -where she could enforce a false claim against
Rehearing denied.
Lead Opinion
1. "A petition in equity by a husband seeking to cancel two concurrent verdicts and a decree obtained in the same court in a former divorce suit by the wife against her former husband, and to have declared continued existence of the former marriage, thereby establishing incapacity of the wife to marry at the time of her marriage to plaintiff, held subject to general demurrer." Hicks v. Hicks,
2. Whether or not, as seems to be contended, the previous judgment for divorce is void on the face of the record for the reason that service by publication was not perfected as required by law, this does not afford ground for an equitable petition to set aside a divorce decree by one who subsequently marries a party to the previous divorce proceeding and who now seeks thus to avoid the payment of alimony, for the reason that "where a judgment at law is void for reasons appearing on the face of the record, and the remedy at law is adequate, complete, and available, equity will not afford relief." Apperson v. Mutual Fertilizer Co.,
3. Accordingly, under either theory of the case, the petition was properly dismissed on general demurrer.
Save for certain exceptions in favor of creditors or bona fide purchasers, the general rule is that none but the parties to a judgment, regular on its face, can move for its nullification. The rule applies with peculiar force in matters of divorce which, although not favored by the policy of the State, may after being granted affect the rights and interest of innocent persons.Axtell v. Axtell,
Nor is a different rule to be applied or a different conclusion to be arrived at in this case merely because the plaintiff alleges that he occupies the status of a creditor, in that he has heretofore paid to the divorcee with whom he subsequently contracted marriage certain amounts of alimony, which he says he is in good conscience entitled to recover by reason of the fact that his marriage to the divorce is illegal in that his spouse had never been legally divorced from her first husband, and that the divorce was obtained by fraud because of untrue allegations and proof with respect to her residence at the time the suit was instituted. While it is true that under the provisions of the Code, § 110-711, creditors may attack a judgment for any defect appearing on the face of the record, or for fraud or collusion wherever it interferes with their rights, either at law or in equity, and while it is also true as stated in the Thomas case, supra, that the direct nature and character of an independent attack on a judgment, not void on its face, is not changed by the fact that such a proceeding may seek other incidental relief besides the main purpose of setting aside the judgment, still an attack on a judgment regular on its face must be taken as collateral, where *633
the petitioner, as a stranger to the previous record, merely claims to have become incidentally interested therein after a termination of that case. Almand v. Thomas,
Since, as ruled in the first division of the syllabus, if the previous judgment of divorce, in nowise concerning the present plaintiff, be treated as valid on its face, the present plaintiff, a stranger to that proceeding, is not a proper person to attack it, and since, as ruled in the second division of the syllabus, if it should be said that the previous judgment of divorce is void on its face, the present plaintiff will not be heard to invoke equitable remedies when he would be able to attack it anywhere or at any time, the petition, under either view, failed to set out a cause of action and was properly dismissed on demurrer.
Judgment affirmed. All the Justices concur.
The motion makes the following statement: "Movant contends that in rendering said decision the court overlooked the fact in the record that it is unequivocally charged in the original petition that it was the defendant in error's fraudulent purpose and intention in filing and securing her fraudulent divorce to perpetrate a fraud on any man she might subsequently determine to marry, and to put herself into a position where she could enforce a false claim against *634
him." In view of the ruling in the first division of the syllabus, it seems manifest that unless the plaintiff, as a stranger to the previous divorce proceeding, which was regular on its face but which he now seeks to attack, can bring himself within the status of a prospective creditor whom his spouse sought by that proceeding to defraud, his action cannot be maintained, even under the theory which the plaintiff by this, his alternative position, seeks to maintain. It is true that this court in Sullivan v. Ginsberg,
Rehearing denied.