Opinion
No. 32941.
February 14, 1938.
1. COURTS.
In absence of agreement of parties for hearing in vacation, the chancellor was without power in vacation to dispose of petition praying that decree for divorce and alimony be set aside and that defendant be granted a new trial.
2. APPEAL AND ERROR.
The recital in order that "petition be and the same is at this time overruled" following adjudication that chancellor was without jurisdiction in vacation to dispose of petition meant that petition was then overruled, not finally, but for time being, leaving its merits to be disposed of in term time, as regards defendant's right to appeal from the order.
3. APPEAL AND ERROR.
The defendant was not entitled to appeal from order adjudging that chancellor was without jurisdiction in vacation to dispose of petition praying that decree for divorce and alimony be set aside and that defendant be granted a new trial and leaving merits to be disposed of in term time.
APPEAL from chancery court of Holmes county. HON. M.B. MONTGOMERY, Chancellor.
A.M. Pepper, of Lexington, for appellant.
The amended bill of complaint was filed without leave of the court first had and obtained as provided by sections 393, 394 and 395 of Code of 1930, and without notice to defendant; in fact, the same is an original suit attempted to be filed under same number and same process of original bill of complaint filed seven years before while defendant was a citizen and resident of Holmes County. This, of course, is not permissible.
Clark v. Hull, 31 Miss. 520; Richardson v. Wolfe, 31 Miss. 616; Miazza v. Yeager, 53 Miss. 135; Jackson v. Lemler, 83 Miss. 37; Bradley v. Howell, 161 Miss. 346.
The publication of process in this case is insufficient for it fails to show that it is to answer an amended bill of complaint. The amended bill of complaint gives the post office address of the defendant but fails to state that he is a nonresident of the state of Mississippi, and there is no affidavit to that effect. Nonresidence of defendant should be clearly alleged in the amended bill of complaint; there is no allegation to that effect. Section 2972 of the Code of 1930, summons by publication, must be strictly complied with.
McCrary v. McCrary, 137 Miss. 160; Mays Food Products v. Gloster Lbr. Co., 137 Miss. 691; Larson v. Larson, 82 Miss. 116.
About thirty days after the rendition of the decree, Garnett Dulaney, defendant, a resident of Washington, D.C., and a nonresident of the state of Mississippi, filed in this cause his petition to set aside the decree or amend the same so far as the same affected his real estate and to permit him to contest the grounds for divorce contained in complainant's amended bill of complaint. The hearing on the petition and motion was set by agreement by all parties hereto for hearing July 31, 1937, at 10 o'clock a.m. At that hearing the petition and motion were overruled by the Chancellor, to which action of the court the defendant then and there excepted and had his exceptions allowed by the court.
The above petition and motion verified by affidavit of defendant were filed in strict conformity with the holding and rule laid down by this court in the recent case of Cratin v. Cratin, 173 So. 415.
The Chancellor should have sustained the petition and motion of the defendant vacating the final decree in this cause, or in any event amending and correcting the same so far as the decree subjected the property of defendant to a lien for solicitor's fees, alimony and costs of court, for the same is based on service of process, by publication for defendant, a nonresident of the state of Mississippi.
The motion of appellant to modify or correct the final decree or to set the same aside as a nullity on account of lack of jurisdiction, and the order of the Chancellor thereon, is also a final act of the Chancellor in vacation for the Chancellor under the agreement for vacation hearing had jurisdiction to consider the same.
The position of the appellant in this case is that the final decree appealed from, as shown by petition for the appeal, is void and of no effect, for the court had neither jurisdiction of the person of defendant or of his property for the defendant was a citizen and resident of Washington, D.C., and a nonresident of the state of Mississippi, and the complainant a citizen and resident of Yazoo County, Mississippi, therefore the Chancery Court of Holmes County, Mississippi, was without jurisdiction on this ground also to hear and determine the cause.
The appellant, therefore, most respectfully contends that this cause should be reversed and the bill of complaint dismissed and the final decree appealed from held for naught.
G.H. McMorrough, and D.T. Ruff, both of Lexington, and L.J. Wise, of Yazoo City, for appellee.
To modify final judgment proceeding must be had directed to that end under statute or some direct proceeding to correct judgment.
Jackson v. Redding, 162 Miss. 323.
Trial court cannot at term subsequent to judgment, reverse or annul it for mere errors of law in proceedings.
McIntosh v. Munson Road Mach. Co., 167 Miss. 546.
The court after the expiration of a term in which a motion to quash an affidavit and writ of attachment was sustained cannot at a subsequent term set aside such order.
Adams v. Evans, 19 So. 834.
Judgment of court of record need not express upon its face that it was rendered after due proof.
Simpson v. Phillip, 164 Miss. 256.
Court cannot try causes and enter decrees in vacation against party not agreeing thereto.
Y. M.V.R.R. v. Lawler, 130 Miss. 421; Newman Lbr. Co. v. Pace, 137 Miss. 504; Morris v. Trussell, 144 Miss. 343; Com. Bank of Manchester v. Lewis, 13 S. M. 226.
After the expiration of the term of court, at which final decree is rendered, the cause can no longer be considered as depending, and all jurisdiction of the court over it is ended, except in cases where infants are parties defendant, and where there is an express reservation to them by the decree of time in which to contest it, and also in cases where the defendants are nonresidents.
Cole v. Miller, 32 Miss. 89.
After adjournment of the term at which a final decree has been entered, the power of court over that decree, if actually entered and correctly entered as rendered, is at an end, excepting only as to the enforcement of the final decree.
Griffith Chancery Practice, sections 621, 633.
Appellant cannot receive any comfort from section 470, Code of 1930, for the simple reason it specifically excepts decrees for divorce and some other matters.
The appellate court always assumes that the proper evidence was before the court when it rendered final judgment.
Steele v. City of Lexington, 170 Miss. 525.
We do not think the Chancellor had any jurisdiction or any authority to hear this motion; that is, to set aside or annul the final decree that the said motion sought to do.
In the case of Grego v. Grego, 78 Miss. 443, this court held that where a final decree recites that the cause was heard on oral testimony by agreement and there is no bill of exceptions, the recital is conclusive, and the decree, on appeal in the Supreme Court, will be presumed to have been warranted by evidence. In that case the phrase "by agreement" was only necessary under the rules of Chancery Practice obtaining at that time as to oral evidence being submitted in open court instead of depositions. At this time it is not necessary to have an agreement to introduce oral testimony. And the final decree in the case at bar recites, among other things, that it is based on oral evidence in open court, thus making the Grego case conclusive authority for sustaining this final decree just as rendered.
The appellant here in his brief asks that the cause be reversed and the bill of complaint dismissed and the final decree appealed from held for naught. Should this final decree be set aside the cause will only be reversed and remanded to the Chancery Court for a hearing upon the merits because appellant (Garnett Dulaney) has submitted himself to the jurisdiction of this court for all purposes when he filed his appearance and motion in the Chancery Court in June, 1937, to have the case reopened.
Griffith Chancery Practice, sec. 243; Section 3000, Code of 1930; York v. Texas, 137 U.S. 15, 34 L.Ed. 604; Kaufman v. Wootters, 138 U.S. 285, 34 L.Ed. 962; Turner v. Williams, 162 Miss. 258.
We respectfully submit that we think this litigation should be held to be at an end and that the final decree of the Chancery Court at the May Term, 1937, should be sustained, and this appeal dismissed, and we confidently believe such will be the decision of this court.
This is an appeal from an order or decree by the chancellor of the court below made in vacation. The appellee sued the appellant, her husband, for a divorce and alimony, and a decree in accordance with the prayer of the bill was rendered. The appellant did not answer the bill of complaint, and after the adjournment of the court filed a petition praying that the decree be set aside, and that he be granted a new trial.
The chancellor in vacation ordered that the petition be heard before him on the 24th of July, 1937. How this order came to be made does not appear, but on July 24th the chancellor continued the hearing to Saturday, July 31st, the parties agreeing thereto. On July 31st the chancellor granted the following order or decree: "This matter coming on this day to be heard upon defendant's petition to set aside decree and the chancellor being of the opinion that he is without power to act in vacation, thereon, it is therefore Ordered, Adjudged and Decreed that said petition be and the same is at this time overruled. To which action of the court, defendant then and there excepted and had his exceptions allowed by the court."
The record does not contain any agreement by the parties for the hearing in vacation, and in the absence thereof, the chancellor very properly held that he was without the power to then dispose of it. The recital in the order, "that said petition be and the same is at this time overruled," following the adjudication that the chancellor was without jurisdiction to then dispose of the matter, can mean only that the petition was then overruled, not finally, but for the time being, leaving its merits, which are not now before us, to be disposed of in term time. From this it necessarily follows that the appeal should be, and it is, dismissed.
So ordered.