166 S.E. 591 | N.C. | 1932
This is an action to annul a pretended marriage between the plaintiff and the defendant on the ground that the defendant had a living husband by a preceding marriage at the time the ceremony between the plaintiff and the defendant was celebrated.
The material facts are as follows: The parties to this action are residents of North Carolina, the defendant all her life having resided in Durham County. They were married in Halifax County in 1921 or 1923. The plaintiff was a widower. The defendant admits that at the time she married the plaintiff her first husband, John A. Dowd, was living and that he is now a resident of North Carolina. In her answer she alleged that prior to her intermarriage with the plaintiff she and her former husband had been divorced, and for the purpose of showing that the decree is invalid in this State, the plaintiff introduced without *534 objection the following record and judgment roll of a civil action prosecuted in the county of Richmond, State of Georgia, entitled "John A. Dowd v. Mary Dowd."
"State of Georgia — Richmond County.
To the Superior Court of said county:
The petition of John A. Dowd, of said county, shows:
1. That in the year 1907 plaintiff and Mary Cheek intermarried in due from of law, and petitioner and defendant have been ever since and now are man and wife.
2. Petitioner has been a bona fide resident of the State of Georgia for 12 months before the filing of this application for divorce.
3. That on 1 May, 1913, his said wife deserted him, petitioner, without any cause on his part; that said desertion was wilful and has been continuous up to the present time.
4. That his said wife, Mary Dowd, is a nonresident of the State of Georgia, and her present address is unknown to petitioner.
5. Wherefore, petitioner prays that process may issue directed to the defendant directing and requiring her to be and appear at the next term of this court to be held in and for said county to answer your petitioner's libel for total divorce.
Henry C. Roney, Attorney for Petitioner. (Filed in office, this 25 May, 1916.)
Richmond Superior Court — July Term, 1916. Libel for Divorce.
John A. Dowd v. Mary Dowd.
It appearing from the petition that the defendant in the above stated case, Mary Dowd, is a nonresident of the State of Georgia;
Ordered, that service be perfected on the defendant by publication in the Augusta Herald, a public gazette of said county in which legal advertisements are published; twice a month for two months, before the next term of this court. This 25 May, 1916.
Henry C. Hammond, J. S.C. A. C.
State of Georgia — Richmond County. Libel for Divorce in Richmond Superior Court, July Term, 1916.
John A. Dowd v. Mary Dowd.
To the defendant, Mary Dowd: You are hereby required in person or by attorney to be and appear at the Superior Court next to be held in and for the county aforesaid on the third Monday in July, 1916, then and there to answer the plaintiff in action for libel for divorce. *535 In default of said appearance said court will proceed thereon as to justice may appertain.
Witness the Honorable Henry C. Hammond, judge of the said court.
This 25 May, 1916. Daniel Kerr, clerk.
Richmond Superior Court — July Term, 1916. Libel for Divorce.
John A. Dowd v. Mary Dowd.
I do hereby certify that notice in the above entitled action was advertised in the Augusta Herald, the legal medium for advertisement in Richmond County, once a week for four weeks, to wit: 26th and 30th of May, 1916, and 7th and 12th of June, 1916.
R. E. Cothran, of the Augusta Herald.
It appearing that advertisement has been made in the Augusta Herald once a week for four weeks of the above stated case, it is hereby ordered that due and legal service has been made and perfected upon defendant as required by law.
31 October, 1916. Henry C. Hammond, J. S.C. A. C.
JUDGMENT.
Richmond Superior Court — July Term, 1916. Libel for Divorce.
John A. Dowd v. Mary Dowd.
Two concurring verdicts having been rendered in this case granting a divorce a vinculo matrimonii between the parties upon legal principles, it is therefore considered and adjudged by the court that the marriage contract made and entered into between the parties in this case be, and the same is hereby, declared to be set aside and dissolved as fully and effectually as if no such contract had ever been made and entered into and that both parties may remarry.
Ordered further that defendant pay the costs of these proceedings.
This 27 January, 1917.
Henry C. Hammond, J. S.C. A. C.
State of Georgia — Richmond County.
Clerk's Office — Superior Court.
I, Daniel Kerr, clerk of Superior Court of said county, certify that the foregoing five typewritten pages contain a true copy of the record In re John A. Dowd v. Mary Dowd, of file in this office and of record in the minutes and book of writes of said court.
Witness my signature and seal of said court. This 21 November, 1931.
(Signed) David Kerr, clerk of Superior Court.
(Seal.) Superior Court, Richmond County." *536
The Code of Georgia provided as one of the grounds of total divorce the wilful and continued desertion by either of the parties for the term of three years.
The defendant offered no evidence, and the jury returned the following verdict:
1. Is the plaintiff now, and has been, for the two preceding years, a resident of North Carolina, as alleged in the complaint? Answer: Yes.
2. Was there a contract of marriage between plaintiff and defendant, as alleged? Answer: Yes.
3. Did the defendant at the time of said contract of marriage then have a living husband by a preceding marriage, as alleged? Answer: No.
With reference to the third issue the court gave this instruction: "Now, if she had a living husband at the time she entered into the contract with plaintiff, then she could not contract — could not enter into another contract of marriage with him, because it would be bigamous and contrary to law, but if she had been married theretofore and her husband was either dead or there had been a binding decree of divorce, then that left her where she could remarry. The plaintiff himself offers a certified copy of the record in the courts of Georgia, in which a decree of divorce was entered in 1917 between the defendant, who was then Mary B. Dowd, and John A. Dowd, and upon that evidence the court instructs you that at the time of the marriage upon that record, if you believe, it, then that she did not have a living husband at the time she entered into the contract in 1923 with the plaintiff and it would be your duty to answer that issue, No."
The plaintiff excepted.
For the purpose of showing that the decree of divorce rendered by the court in Georgia is without legal validity in North Carolina the plaintiff introduced the judgment roll, from which it appears that the defendant in the action was served with constructive and not with personal service of process. If the decree is a nullity here the plaintiff is not estopped by its introduction, "for what the law pronounces void cannot estop." Gathingsv. Williams,
Between void and voidable marriages the law recognizes a distinction which applies to the status of the parties before the marriage relation is *537
dissolved. A voidable marriage is valid for all civil purposes until annulled by a competent tribunal in a direct proceeding, but a void marriage is a nullity and may be impeached at any time. Schouler's Marriage, etc., sec. 1081; Johnson v. Kincade,
The General Assembly has provided that all marriages between persons either of whom has a husband or wife living at the time of such marriage shall be void, and that the aggrieved party may seek relief in the Superior Court, which has succeeded to the functions of the ecclesiastical courts of England. C. S., 1658, 2495; Gathings v. Williams, supra; Johnson v.Kincade, supra; Setzer v. Setzer,
The cause of action is founded almost entirely upon documentary evidence which is made a part of the case on appeal. It is admitted that the defendant has all her life been a resident of North Carolina and at the commencement of the action was a resident of Durham County. In the year 1907, in this State, she married a man named John A. Dowd, who afterwards left North Carolina and went to Richmond County, in the State of Georgia. There he brought suit against his wife, the present defendant, for divorce from the bonds of matrimony. The Code of Georgia provided as one of the grounds for total divorce the "wilful and continued desertion by either of the parties for the term of three years."
In his petition Dowd alleged that he and Mary Cheek, the defendant, had intermarried in due form of law and had since been husband and wife; that he had been a bona fide resident of the State of Georgia for *538 twelve months before the filing of his application for divorce; that on 1 May, 1913, his wife deserted him without any cause on his part; that her desertion of him was wilful and had been continuous up to 25 May, 1916, the date his petition was filed; that his wife was a nonresident of the State of Georgia; and that her address was unknown to him. It was thereupon ordered that service be perfected on the defendant by publication in a public gazette of the county in which legal advertisements were published, and upon certificate of the publisher it was "ordered that due and legal service on the defendant had been made and perfected." The defendant was served with process only in this way; she neither appeared in person or by attorney nor filed an answer. At July Term, 1916, the court adjudged, two concurring verdicts having been rendered in accordance with the law of Georgia, that the marriage contracts entered into between the parties in the case be declared to be set aside and dissolved as fully and effectually as if no such contract had been made and that both parties might marry again.
Upon these undisputed facts the plaintiff contends that the judgment rendered in the Georgia Court is void in North Carolina as against the defendant and that at the time of his pretended intermarriage with her she was disqualified by reason of her former marriage to enter into another matrimonial contract.
It is a settled principle of law that a personal judgment rendered in the court of one state against a nonresident merely upon constructive service without acquiring jurisdiction of the person of the defendant, is void by operation of the due process clause of the Fourteenth Amendment of the Constitution of the United States: "Nor shall any State deprive any person of life, liberty, or property without due process of law." Pennoyerv. Neff,
If a husband and his wife are domiciled in the same state there exists jurisdiction in such state to enter a decree of divorce which will be entitled to enforcement in another state by virtue of the full faith and credit clause; and if a bona fide domicile has been acquired in a state by one of the parties to the marriage and a suit for divorce is brought in *539
such state by the domiciled party, the courts of that state, if they acquire personal jurisdiction of the other party, have authority to enter a decree of divorce entitled to be enforced in every state by reason of the full faith and credit clause. Cheever v. Wilson, 9 Wall., 108,
In the light of these principles it is important to know what this Court has said in opinions dealing directly with the subject.
In Irby v. Wilson,
There are several cases in which this opinion has been reaffirmed.Gathings v. Williams, supra; Davidson v. Sharpe,
In Bidwell v. Bidwell,
The statement in the Bidwell case was obiter, apparently founded onAtherton v. Atherton,
Error. *542