187 Ga. 616 | Ga. | 1939
It is deemed appropriate to make some elaboration of the second division of the sjdlabus, as to what persons, not parties to a previous judgment not void on its face, are authorized to attack directly its validity. Save for certain exceptions in favor of creditors or bona fide purchasers (Code, § 110-711), and others who may be excepted by statute, it is the general rule that none but the parties to a judgment can move directly for its nullification, that is, that “a third person not a party to the record can not go into a court and move to. set aside a judgment which is not
Since the plaintiffs in this case are the heirs of a deceased second husband, who was not a party to the previous divorce decree against the widow’s first husband, and both of the parties to that proceeding remain in life, the cases relied on, involving the rights after death of parties to divorce decrees, their heirs, personal representatives, or children, or others in some privity or close personal relation with a party, are not in point. Thus, in Hood v. Hood, 143 Ga. 616 (85 S. E. 849), a husband, after divorcing his wife, married a second wife, and when he died the first wife sought in the court of ordinary to defeat the application of the second wife for a year’s support by attacking the validity of the divorce. No absence of jurisdiction appearing on the face of the record, it was there held that “the judgment and decree of divorce attacked being a judgment of a court of general jurisdiction, every presumption in favor of its validity and regularity should be indulged;” and that, if there was no jurisdiction, “the judgment in the divorce proceeding should be attacked' in the court which rendered the judgment, and the validity and regularity of that judgment should not be made a collateral issue in another proceeding,” brought in the court of ordinary. There the attack was made by one who had been a party to the divorce decree, but it was held to have failed because of her collateral procedure in another court. There was no attack by a second spouse, or the heirs of a deceased second spouse, in no privity with either of the parties, as in this case. See also, as' to contests by persons in privity or in some relationship with a party, after the death of a party to a divorce decree, McLeod v. McLeod, 144 Ga. 359 (97 S. E. 286); McElrath v. McElrath, 120 Minn. 380 (139 N. W. 708; 44 L. R. A. (N. S.) 505); Wood v. Wood, 136 Iowa, 128 (113 N. W. 492, 12 L. R. A. (N. S.) 891, 125 Am. St. R. 223); Dwyer v. Nolan, 40 Wash. 459 (82 Pac. 746, 1 L. R. A. (N. S.) 551, 111 Am. St. R. 919, 5 Ann. Cas. 890); Lawrence v. Nelson, 113 Iowa, 277 (85 N. W. 84, 57 L. R. A. 583); Rawlins v. Rawlins, 18 Fla. 395; note in 99 A. L. R. 1309-1318; 9 R. C. L. 453-455, §§ 263, 264.
For the reasons stated, the heirs of the deceased second husband,
Judgment reversed.