Opinion
8 Div. 936.
March 24, 1927.
Appeal from the Circuit Court, Limestone County; Hon. James E. Horton, Judge.
Sanders Woodroof, of Athens, and W. W. Callahan, of Decatur, for petitioner.
Mandamus is the proper remedy for vacating void orders or judgments. State v. Curtis, 210 Ala. 1, 97 So. 291; State v. Brewer, 19 Ala. App. 330, 97 So. 777; Id., 210 Ala. 229, 97 So. 778; Ex parte McLeod, 20 Ala. App. 641, 104 So. 688; Ex parte Cunningham, 19 Ala. App. 584, 99 So. 834; Ingram v. Ala. Power Co., 201 Ala. 13, 75 So. 304. Courts have no power or jurisdiction, either ex mero or on the motion of a third party, to modify or vacate judgments or decrees rendered at a former term of court, unless such judgment or decree be shown by the records to be not voidable but void. Singo v. Fritz, 165 Ala. 658, 51 So. 867; City B. T. Co. v. Leonard, 168 Ala. 404, 53 So. 71; McLeod v. Home Pattern Co., 20 Ala. App. 430, 102 So. 597; 1 Freeman on Judgments (5th Ed.) § 196; 34 C. J. 210, 219; Donnell v. Hamilton, 77 Ala. 610; Jackson v. Ashton, 10 Pet. 480, 9 L.Ed. 502. This rule applies to divorce decrees. 9 R. C. L. (Div. Rep.) § 256; 1 Freeman, § 213; 3 Freeman, § 1186; Delbridge v. Delbridge, 189 Iowa, 1116, 179 N.W. 438. A decree of divorce procured by collusion is not void, but merely voidable. Johnson v. Johnson, 182 Ala. 376, 62 So. 706. It was not essential to the validity of the divorce decree that it make disposition of the custody of the children. Keezer, Mar. Div. (2d Ed.) § 525. Where fraud has entered into the procurement of a judgment or decree, or its invalidity may be shown only dehors the record, such matters, after adjournment of court, can only be reached by an independent suit, by original bill in the nature of a bill of review. Ex parte Smith, 34 Ala. 455; Story Eq. Pl. (10th Ed.) § 426; 10 R. C. L. "Equity," § 351.
W. H. Long, of Decatur, opposed.
The remedy for petitioner is by appeal and not mandamus. Code 1923, § 8980. The custody of infants is a matter within the inherent jurisdiction of courts of equity. Thomas v. State, 21 Ala. App. 533, 109 So. 609. In suits for divorce, the interest of the public being involved, the court may receive and act upon evidence showing misconduct on the part of the complainant, although such misconduct is not brought forward and relied on in the answer. Ribet v. Ribet, 39 Ala. 348; Powell v. Powell, 80 Ala. 598, 1 So. 549. A decree, for fraud or collusion, may be set aside by bill of review. Johnson v. Johnson, 182 Ala. 376, 62 So. 706. The court is not bound by the pleadings of the parties in suits for divorce, but may of its own motion examine witnesses as to suspicious conduct showing collusion or condonation, although the defendant has not alleged such defenses. Decker v. Decker, 193 Ill. 285, 61 N.E. 1108, 55 L.R.A. 697, 86 Am. St. Rep. 325; 2 Bishop, Mar. Div. c. 16.
While it has sometimes been said that the state or the public is interested in every suit for divorce, and that courts in granting or denying divorces have regard for the public interest in a general sense (Spafford v. Spafford, 199 Ala. 300, 308, 74 So. 354, L.R.A. 1917D, 773; Fisher v. Fisher, 95 Md. 315, 52 A. 898, 93 Am. St. Rep. 334; 9 R. C. L. 409, § 208), yet, when a decree of divorce has been duly rendered by a court having jurisdiction of the subject-matter and of the parties, it differs in no respect from other decrees and judgments. It is conclusive upon the parties, and equally upon the public; and, not being void on its face, it cannot be vacated and annulled at a subsequent term of the court, either on the motion of a party, or by the court ex mero motu. This, under decisions many times repeated, has become an elementary principle in the law of judgments. Baker v. Barclift, 76 Ala. 414; Singo v. Fritz, 165 Ala. 658, 51 So. 867.
It may, like other judgments, be impeached at any time — barring laches, of course — at the suit of the injured party, by an original bill in the nature of a bill of review, on the ground of extrinsic fraud in the procurement of the decree. Ex parte Smith, 34 Ala. 455; Johnson v. Johnson, 182 Ala. 376, 381, 62 So. 706. In the absence of such a proceeding, properly invoking this remedial and revisory jurisdiction of the court, it is without power to vacate or annul a decree of divorce, or any other final judgment, not void on its face.
It is settled in this state, and by the weight of authority generally, that:
"A decree of divorce, though procured by the collusion of the parties, is not therefore void, and neither of the guilty parties is entitled as of right to have the decree set aside on that ground." Johnson v. Johnson, 182 Ala. 376, 382, 62 So. 706, 708; 19 Corp. Jur. 168, § 416; 9 R. C. L. 378, § 168.
The mere fact that the parties to this decree agreed between themselves that the complaining wife should have the custody of the children, omitting that issue from the bill and the decree, has no tendency to show a fraudulent or culpable collusion in the procurement of the decree of divorce, nor would the wife's failure to claim alimony have any such significance. But, in our view of the case, it could make no difference what facts were disclosed to the court — however significant of collusion they might have been, and however available in a proper proceeding for the avoidance of the decree. The decree of vacation was without authority, and should itself be vacated, as clearly appears from the petition and from the answer of the respondent. In such a case mandamus is the appropriate remedy to vacate the unauthorized decree, and to restore the decree wrongfully set aside. Ingram v. Ala. Power Co., 201 Ala. 13, 75 So. 304.
Let the writ issue as prayed.
Writ granted.
ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.