Opinion
No. 37581.
October 16, 1950.
1. Courts — divorce — foreign decree — setting aside — jurisdiction.
The chancery court in this state has no jurisdiction to set aside a decree of divorce granted in another state, or otherwise to interfere even on a bill here charging that the foreign decree was obtained by fraud, when the bill does not ask for a divorce, or for support or maintenance or for any coercive or executory aid of the court.
2. Courts — divorce — foreign decree — declaratory decree here.
Although a decree of divorce granted in another state when shown here to have been obtained by fraud may be disregarded by the courts of this state if necessary to the relief to which a party litigant is entitled, a bill in chancery in this state which seeks only to set aside the foreign decree and asks for no other relief whatever is not maintainable since its only object is to obtain a declaratory decree which would be purely advisory.
Headnotes as approved by Roberds, P.J.
APPEAL from the chancery court of Lawrence County; NEVILLE PATTERSON, Chancellor.
Hall Callender, for appellant.
Appellee sought no relief in the lower court, except a judgment declaring that "complainant and defendant are husband and wife under the laws of the State of Mississippi". The court would have had power, of course, to take cognizance of appellee's bill had she asked for a divorce, or for alimony, or separate maintenance, or for some other form of executory relief or process; but the bill as filed presents no justiciable controversy and seeks of the court no more than an advisory opinion.
The decree sought by complainant in the lower court meets the characteristics of a declaratory judgment, as defined by the text writers. In 16 Am. Jur. Sec. 3, "Declaratory Judgments", p. 275, the following is said in reference to declaratory judgments: "The distinctive characteristic of a declaratory judgment is that the declaration stands by itself, that is, no executory process follows of course. In other words, such a judgment does not involve executory or coercive relief."
It has been well settled in practically all jurisdictions that the courts will refuse to award declaratory judgments in the absence of statutory authority therefor. 16 Am. Jur., Sec. 4, "Declaratory Judgments", p. 277.
An interesting annotation on this subject is found in 68 A.L.R. 111-112. See also annotation in 87 A.L.R. 1206-8. The Mississippi case of White v. Franklin, 165 Miss. 729, 140 So. 876, was cited in that annotation. The Supreme Court in that case refused to make a declaration on these questions and said in its opinion: "We decline to consider the cross-appeal for the reason that the case is now decided that appellee is not a proper party authorized to bring this character of action. The case presented on the cross-appeal is, therefore, ex parte, and in our opinion would not be binding on any party to this litigation, being merely advisory. We are not authorized to render advisory opinions to prospective litigants. Under our system of jurisprudence, the propriety of our refraining from so doing is quite evident.
"We will not express any opinion on a case for the mere information of parties, or in order to forestall another suit properly instituted by a party having the right so to do. We, therefore, dismiss the cross-appeal."
The text of Corpus Juris fully supports our position on the general demurrer. In 33 C.J., Sec. 57, "Judgments", p. 1097.
In deciding the recent case of Swetman, et al. v. Harrison County, 207 Miss. 831, 42 So.2d 801, the Supreme Court of Mississippi refused to decide a question for the mere information of the parties.
In urging that the bill states no cause of action, we are not unmindful of the prayer therein that "the court may grant a decree voiding defendant's Arkansas divorce decree and holding said decree to be naught"; and we are not unmindful that in the cases of Miller v. Miller, 173 Miss. 44, 159 So. 112, and Hall v. Hall, 199 Miss. 478, 24 So.2d 347, the Supreme Court of Mississippi has held that the full faith and credit clause of the Federal Constitution does not require recognition and enforcement of a divorce decree rendered in another state, where the court of that state had no jurisdiction of the marriage status or of the person of the wife, who was only constructively served with process. But in both of these cases a justiciable controversy and a demand for executory relief was sought by the complainants.
In the Miller case, supra, the complainant sought a decree of divorce and alimony and attorney's fees, all of which the court had jurisdiction to grant under the facts developed upon the trial. The Arkansas divorce decree was not physically set aside, or vacated, by the Mississippi Court, for only the court which rendered the decree could revoke it, but the Mississippi Court simply refused to recognize and enforce the Arkansas decree under the full faith and credit clause of the Federal Constitution.
In the Hall case, supra, the opinion of Justice Alexander states that "Mrs. Hall filed her bill to set aside a decree of divorce granted to her husband, appellant, in Nevada, and for an allowance for support and maintenance". But, actually, the Mississippi Court did not set aside the Nevada decree, — it simply refused to recognize it. The Nevada decree no doubt is still outstanding in that state and the Mississippi Court did not, and could not, set it aside. The Mississippi Court refused to recognize the foreign divorce and refused to enforce it under the full faith and credit clause of the Federal Constitution.
Hence, it is entirely clear that in the Hall case the Mississippi Court went no further than to refuse recognition of the foreign decree, just as was done in the Miller case. And in the Hall case, as in the Miller case, the complainant sought and was granted specific coercive relief, in the form of an allowance for separate maintenance and counsel fees.
Grubbs Farmer entered appearance for appellee but filed no brief.
On September 9, 1946, the Chancery Court of White County, Arkansas, purported to grant to appellant, on his bill, a divorce from appellee. Appellee filed the bill herein alleging that the foregoing decree was obtained by fraud and praying ". . . that upon a hearing of this cause the court may grant a decree voiding defendant's Arkansas divorce decree and holding said decree to be naught and decreeing further that complainant and defendant are husband and wife under the laws of the State of Mississippi". The defendant in this cause, by demurrer, urged in the lower court and urges here that this bill simply seeks a declaratory judgment; that no affirmative or executory relief is prayed and that the decree, if granted, would be only advisory, and that the chancery court has no power to grant such a decree. The lower court overruled the contention and granted this appeal to settle the principles. (Hn 1) We think the contention is well taken under the proceedings herein. It will be noted the bill does not ask for divorce, support or maintenance, or any affirmative, coercive or executory aid of the court. The chancery court of Mississippi, of course, has no power to set aside a decree of the chancery court of Arkansas. (Hn 2) If any appropriate affirmative or executory relief is asked, the Mississippi courts may, if such relief ought to be granted, disregard and refuse to be bound by an Arkansas decree this court considers null and void, if that be necessary and a prerequisite to the awarding of relief to which a party litigant is entitled. That is what was done in Miller v. Miller, 173 Miss. 44, 159 So. 112 and Hall v. Hall, 199 Miss. 478, 24 So.2d 347. In the Miller case the complainant sought a divorce, alimony, solicitor's fees, and an injunction to prevent defendant from disposing of his property. In the Hall case complainant prayed for support and maintenance. In the case at bar nothing is asked except that this court declare and adjudicate complainant and defendant to be man and wife, which would be purely advisory. Neither the court below nor this court has that power or duty. White v. Franklin, 165 Miss. 729, 140 So. 876; Swetman v. Harrison County, 207 Miss. 831, 42 So.2d 801.
Reversed and remanded.
Hall, J., took no part in this decision.