delivered the opinion of the court.
James V. Travis, deceased, had been married three times, once to Mary Travis by whom a son, Edward John, was born; once to Betty Lou Travis by whom a son, James Francis, was born; and once to Elaine Travis. On July 30, 1952, Travis filed a suit for divorce in Laramie County against Elaine Travis, as a result of which a decree of divorce was issued on September 8 of that year. On February 28, 1955, he died intestate; and in the probate of his estate in Laramie County his two sons, James Francis and Edward John, were listed as his heirs. After the administrator had submitted “First and Final Accounting and Petition for Distribution,” attorneys for Elaine Travis and James Vivan Travis on May 25, 1956, filed “Objections and Exceptions to First and Final Accounting and Petition for Distribution,” alleging that Elaine Travis was the widow of deceased; that James Vivan
At the hearing, Elaine was asked by counsel various questions about her conduct and conversation with deceased during his lifetime. Both the administrator and the guardian ad litem objected to the questions on the ground that they were a violation of § 3-2603, W.C.S.1945, commonly known as the dead man’s statute. The court overruled the objections, saying among other things:
“It is the view of the court here that this is by and large a hearing to determine heirship.* * *
“Now in this kind of a hearing the court does not feel that this so-called exclusionary statute has application or should be given application. The court should not be precluded from having as full an inquiry here and as necessary, in the opinion of the court to that hearing — -to such hearing and that that statute be not applied and exclude this witness here. In reality it may be said that it is a contest between an administrator of an estate and two other individuals claimedheirs. It is that, but I don’t believe it is in the contemplation of the law that that statute should preclude an inquiry such as is about to be made here and which objector is undertaking to make now through the use of this witness as his first witness. So I am going to overrule this objection on that theory, that the court should not be controlled and limited in its inquiry in a matter of this type, an estate matter of this type where heirship has to be found — should not be excluded from hearing evidence such as the evidence of this wife here and I hold myself to it.”
Three questions are necessary for determination of this appeal: (1) Could the probate court properly determine the decree of divorce entered by the district court of the same district to be void and invalid, and could the court vacate and set it aside collaterally ? (2) Was testimony by Elaine Travis of her acts and conversations with the deceased at a time prior to his death admissible in the light of the provisions of § 3-2603, which under certain circumstances prevents testimony where the adverse party is an administrator or heir? (3) Was the probate decree purporting to void, invalidate, and vacate the divorce contrary to § 3-3802, W.C.S.1945 (1957 Cum. Pocket Supp.), a statute which relates to the time during which a judgment may be reopened?
On the first question it may be well to consider what we mean by “collateral attack.” In Hume v. Ricketts,
“ * * Collateral attack might be defined as an attack on a judgment in any manner other than by action or proceeding whose very purpose is to impeach or overturn the judgment, or, stated affirmatively, a collateral attack upon a judgment is an attack made by or in an action or proceeding that has an independent purpose other than impeaching or overturning the judgment * * ”
See also Ballentine, Law Dictionary, 2d ed., p. 230; Black’s Law Dictionary, 3d ed., p. 348; and 7A Words and Phrases, perm.ed. 1952, pp. 141, 142.
It is clear beyond question that the attack on the divorce judgment was collateral, the divorce having been granted in the district court and the decree establishing heirship which purported to vacate the divorce decree having emanated from the probate court. In fact, the point is assumed rather than argued by appellees who justify the attack upon the decree by pointing out its invalidity for want of jurisdiction. In any event, the rule is well established that a judgment is not subject to collateral attack where the court had jurisdiction of the subject matter and of the parties. Closson v. Closson,
Appellants argue that the divorce decree was attacked collaterally in violation of law. Appellees respond that a judgment affirmatively appearing on the face of the record to be void may be attacked collaterally or otherwise and cite Boulter v. Cook,
Random questioning of court decrees by other courts which stand on a similar or lesser footing is a practice which affects public policy and convenience, especially in regard to the integrity of established rights acquired on the faith of judicial proceedings. See generally the discussion and citations at 30A Am.Jur. Judgments § 845. 1 Freeman on Judgments, 5th ed., pp. 602, 603, states:
“* * * That the formal pronouncements of legal tribunals upon causes submitted to them should enjoy every possible degree of finality and conclusiveness would seem to be a necessary predicate to the proper functioning of the courts themselves. To permit their decisions to be evaded or disregarded for insufficient cause or in modes not sanctioned by law would tend to disrupt the administration of justice and bring courts into disrepute. Public policy requires that a term be put to litigation and that judgments, as solemn records upon which valuable rights rest, should not lightly be disturbed or overthrown. Litigants, of course, must be provided with some remedy to gain relief from an erroneous or unwarranted judgment. And in recognition of such necessity, the law has established appropriate proceedings to which a judgment party may always resort when he deems himself wronged by the court’s decision. If he so wishes, he may seek relief from the judgment by some timely move in the court rendering it, or have recourse to some authorized mode of review by an appellate tribunal, or under certain circumstances procure a setting aside or annulment of the judgment by a court of equity. If he omits or neglects to test the soundness of the judgment by these or other direct methods available for that purpose, he is in no position to urge its defective or erroneous character * *
We therefore look now to the proceedings in the divorce case. The decree therein among other things recited, “the court finds * * * it has jurisdiction of the parties and the subject matter.” Such finding made by the court, presumably after careful examination of the file' and serious consideration of the single matter then before it, would seem to constitute a determination assailable only in a direct proceeding and for convincing reasons. We cannot assume that a trial court has made a specific finding of jurisdiction which was unwarranted and without basis. Accordingly, we examine file 38-166 in the District Court of Laramie County, James V. Travis, Plaintiff, v. Elaine Travis, Defendant. This was marked by the reporter as Defendant’s Exhibit B, and although not specifically offered, was permitted by the court to “go in.” It contains the petition, affidavit for service by publication, precipe for summons, summons with return, affidavit of publication with notice, and decree of divorce, all dated in 1952, and a series of papers filed between October 12, 1955, and October 1, 1957, relating to a requested vacation of the divorce judgment. Several facts regarding these later filings are significant. The ultimate filing is a subpoena to the James V. Travis attorney directing him to bring with him “his office notes and records” in the captioned case. Next to the
We cannot assume that the clerk of court failed to send the copy of the publication to Elaine Travis by
We turn then to a consideration of § 3-2603 to determine its application in the present situation. Its provisions are fairly broad, wherein it states, “A party shall not testify where the adverse party is * * * an * * * administrator, or claims or defends as heir, grantee, assignee, devisee or legatee of a deceased person.” Appellants urge that the statute should have applied in the present case, and under the circumstances disclosed by the record, we are inclined to agree. Appell-ees insist that no resistance was filed to their objections and therefore that no issue was joined between the parties. Authority for their position is lacking in the brief and argument, and their reference to Collins v. Collins,
We advert then to appellants’ argument that the trial court erred in setting aside a decree more than three years after the party against whom it was rendered had received actual notice thereof, all in violation of § 3-3802. The petition to vacate the divorce decree did not purport to be brought under that section, and the argument is therefore not well taken.
Although the decree of divorce in the case of James V. Travis V: Elaine Travis may conceivably be challenged at a later time, it must under the present state of the record stand as valid. Accordingly, the case is reversed and remanded for proper action consistent with the views herein expressed.
Reversed and remanded.
Notes
Rim Group v. Mountain Mesa Uranium Corporation, Wyo.
“No bill, except general appropriation bills and bills for the codification and general revision of the laws, shall be passed containing more than one subject, which shall be clearly expressed in its title; but if any subject is embraced in any act which is not expressed in the title, such act shall be void only as to so much thereof as shall not be so expressed.”