Summary
In Martin v. State, 244 Ala. 323, 13 So.2d 206, 207, it was said: "A court of equity, when its jurisdiction is invoked by bill in the nature of a bill of review to vacate a judgment or decree of another court upon the ground of fraud in its procurement, is a court of general jurisdiction in the exercise of its general equity powers."
Summary of this case from Atkins v. AtkinsOpinion
7 Div. 741.
April 8, 1943. Rehearing Denied May 13, 1943.
Certiorari to Court of Appeals.
Petition of Homer W. Martin for certiorari to the Court of Appeals to review and revise the judgment and decision of that court in the case of Martin v. State, 13 So.2d 203, wherein a judgment of conviction for bigamous cohabitation was affirmed.
Writ denied.
It appears from the opinion of the Court of Appeals brought under review that appellant (petitioner) was married to Era Martin in 1921 and lived with her until 1941, when he left her; that he has since been found living with another woman held out to be his wife; that appellant by way of defense introduced a decree of a Tennessee circuit court, rendered in May 1941, divorcing him from Era Martin; that thereupon the State introduced a decree of the Tennessee chancery court, rendered in January 1942, setting aside said decree of divorce.
Motley Motley, of Gadsden, for the petition.
The decree of divorce being by a court of competent jurisdiction could not be impeached by collateral attack in another court. 15 C.J. 837, 851, 852; Stephens v. Cherokee Co., 180 Ala. 531, 61 So. 917; Perry v. King, 117 Ala. 533, 23 So. 783; Vinyard v. Hayes, 30 Ala. App. 595, 10 So.2d 299; 17 A. E. Engy. L. (2d.Ed.) 299; 17 A. E. Emcy. L. (2d.Ed.) 842(6); 21 C.J. 712.
Wm. N. McQueen, Acting Atty. Gen., and John J. Haynes, Asst. Atty. Gen., opposed.
A court of equity, when its jurisdiction is invoked by bill in the nature of a bill of review to vacate a judgment or decree of another court upon the ground of fraud in its procurement, is a court of general jurisdiction in the exercise of its general equity powers.
Such a suit is a direct attack on the judgment or decree sought to be vacated. It challenges the existence of the judgment as a valid adjudication from the date of its rendition.
The equity decree vacating the decree of divorce recites it was rendered in a suit inter partes, on bill and answer, and evidence taken orally before the court and other proof; and further recites the decree of divorce was rendered without the knowledge of defendant therein The decree of divorce, also in the record, discloses it was rendered upon an ex parte hearing after decree pro confesso on publication.
Cases dealing with collateral attack on judgment are not in point.
The decree in equity nullifying the decree of divorce was conclusive, as against this appellant, that the first wife was still the lawful wife of appellant at the time of the rendition of the equity decree, and, therefore, at the time the indictment was found.
Writ of Certiorari denied.
GARDNER, C. J., and FOSTER and LAWSON, JJ., concur.